P L D 1959 (W (PLP)

MASUD AHMAD, J.--‑These two petitions (Nos. 633 and 924 of 1958) arise out of certain incidents which took place in the beginning of February 1958, at the Pakistan Air Force Stations at Chaklala and Peshawar, and in which the petitioners and some other air‑craftmen of the Pakistan Air Force were involved. Most of the airmen of the Pakistan Air Force stationed at Chaklala, who lived in the Air Force Station and were provided with meals at the mess and were described as "living‑in" Airmen, stopped taking their meals from the evening of the 6th of February 1958, with a view to getting certain alleged grievances redressed. No meals were taken by them on the next two days, namely the 7th and the 8th of February 1958, in spite of a general order issued by the Station Commander. Those "living‑in" airmen who were stationed at Peshawar also stopped taking their meals from the morning of Sunday the 9th of February 1958 and refrained from doing so until the morning of Tuesday the 11th of February 1958, in spite of verbal orders given to them by the Station Commander. A number of disciplinary steps were taken by the Air Force authorities against these airmen, including the convening of Courts Martial.

2. A general Court Martial was convened for trying five airmen, including one Mr. Dighvi, and Tausif Ahmad Siddiqi, petitioner in Writ Petition No. 924 of 1958. Mr. Tausif Ahmad Siddiqi fell ill and, therefore, could not be tried by that Court Martial. A second Court Martial was convened to try him for having committed an offence punishable under clause (a) of section 35 of the Air Force Act, 1932. His trial was held before this Court Martial from the 23rd of May 1958 to the 7th June 1958. The Court gave a verdict of "not guilty" against Mr. Tausif Ahmad Siddiqi, but that verdict was not confirmed and another Court Martial was convened for trying him for having committed an offence punishable under clause (a) of section 31 of the Pakistan Air Force Act, 1953, which Act had, by that time, come into force. The charge against him was of‑ "Conspiring with other persons to cause a mutiny in the Pakistan Air Force, in that he at Rawalpindi on or about 5th February 1958 agreed with Pak/54017 ACI Dighvi, A. H. and certain other airmen of the Pakistan Air Force Station, Chaklala, to cause mutiny at the said station, that is to say, to resist proper air force authority by refraining from taking their meals in the airmen's mess, as a mark of protest against certain alleged grievances against their superior officers, even though ordered to do so." He was found guilty on this charge and was sentenced to undergo five years' rigorous imprisonment, and was also dismissed from service. These findings and, sentence were confirmed by respondent No. 1, the Commander‑in‑Chief, Pakistan Air Force, as the confirming authority.

3. The petitioners in Writ Petition No. 633 of 1958, who are five in number, were charged on the 17th of February 1958, for having committed an offence punishable under clause (a) of section 35 of the Air Force Act, 1932. Subsequently, on the 27th of February 1958, in substitution of the previous charge, a new charge sheet was served on them, in which they were charged with‑ "Conspiring with other persons to cause a mutiny in the Pakistan Air Force, in that they at Peshawar on or about 8th February 1958 agreed together and with certain other airmen of the P. A. F. Station Peshawar to cause a mutiny in the said station, to wit, to resist proper Air Force authority by refusing to take their meals in the airmen's Messes." A Court Martial was convened for trying these petitioners and on the 8th of March 1958 this Court gave a verdict of "guilty" against all of them. Mr. M. N. Huda, petitioner, was sentenced to undergo five years' rigorous imprisonment and the remaining four petitioners to seven years' rigorous imprisonment, each. The finding and the sentences of the Court Martial were duly confirmed by respondent No. 1, as the confirming authority.'

4. In Writ Petition No. 924 of 1958, Air Craftman Tausif Ahmad Siddiqi, petitioner, challenged the legality of the, finding and sentence of the Court Martial on two main grounds. He contended firstly, that after the first Court Martial had given a finding of "not guilty" the convening authority was not compe tent to convene a second Court Martial, and, secondly, that his conviction and sentence at the re‑trial were based on no evidence and, consequently, his detention was illegal. On these grounds a writ of habeas corpus for ordering his release and a writ of certiorari for quashing the proceedings were prayed for. Besides the confirming authority (Commander‑in‑Chief, Pakistan Air Force), the Judge Advocate‑General, Air Headquarters, Karachi, and the Superintendent of Central Jail, Rawalpindi, were made parties. When this petition was admitted to a hearing and a notice was ordered to be issued to the respondent, it was made clear that the petition was being admitted only for deciding the question whether on the facts alleged by the prosecution no offence had been committed by the petitioner.

5. In the second Petition (No. 633 of 1958) it was alleged by the petitioners that on the evidence produced at their trial, no offence of "mutiny" had been made out, nor was the commission of any other offence by them proved. It was prayed that a writ of certiorari, or any other appropriate writ, order or direction be issued to the respondent, namely, Government of Pakistan that the record of the General Court‑ Martial be called and the proceedings against them be quashed and a writ of habeas corpus be issued for setting the petitioners at liberty. As the points involved in both the petitioners are similar, they are being disposed of by a single judgment.

6. The learned counsel for the petitioners, in both the cases, conceded that the General Courts Martial which tried and convicted the petitioners had jurisdiction to try and convict them and that their findings cannot be challenged on the ground of insufficiency of evidence, but contended that there being no evidence on the respective records to hold the petitioners guilty of the offences complained of, the error committed by the Courts Martial was apparent on the face of the records and, therefore, in exercise of the power conferred by Article 170 of the late Constitution, this Court is competent to quash the proceedings and to direct that the petitioners be set at liberty.

7. Under the common law a writ of certiorari is issued by a superior Court and is directed to the Judge or other officer of an inferior Court. It requires that the record of the proceedings before such inferior Court shall be transmitted to the superior Court. The object of this writ is to give relief from some inconvenience or error supposed. Where the Court below has acted without jurisdiction, a writ of certiorari can be issued to quash those proceedings. It can also be issued where upon the face of the proceedings themselves it appears that the deter mination of the inferior Court is wrong in law. Where the proceedings are regular upon their face and the inferior Court has jurisdiction, the superior Court will not grant the writ of certiorari, on the ground that the Court below has misconceived a point of law. Nor will certiorari be granted to quash the decision of an inferior Court within its jurisdiction, on the ground that the decision was wrong on matters of fact. The scope of certiorari was discussed by the Court of Appeal in England in a recent case reported as R. v. Northumberland Compensation Appeal Tribunal Ex parte Shaw ((1952) 1 All. E L R 122). The following observations made at page 128 of this reported case are very significant :‑ "Of recent years the scope of certiorari seems to have been somewhat forgotten. It has been supposed to be confined to the correction of excess of jurisdiction, and not to extend to the correction of errors of law, and several learned Judges have said as much. But the Lord Chief Justice has, in the present case, restored certiorari to its rightful position and shown that it can be used to correct errors of law which appear on the face of the record, even though they do not go to juris diction."

8. It will thus be seen that a writ of certiorari can be issued not only where there is excess, or want, of jurisdiction by the .4 inferior Court, but also where that Court has committed an error of law which is apparent on the face of the record. The question, therefore, which requires decision by us in these cases is whether any such error was committed by the Courts Martial, which convicted and sentenced the petitioners, to justify interference by this Court by the issue of a writ of certiorari.

9. The petitioner in Writ Petition No. 924 of 1958 was found guilty for having committed an offence punishable under clause (a) of section 37 of the Pakistan Air Force Act, 1953, and the remaining petitioners were found guilty for having committed an offence punishable under clause (a) of section 35 of the Air Force Act, 1932. The first mentioned provision of law is worded as follows: ‑ "37, Any person subject to this Act who commits any of the following offences, that is to say :‑ (a) begins, incites, causes, or conspires with any other person to cause, any mutiny in the Military, Naval or Air Force of Pakistan or any forces co‑operating therewith ; or shall, on conviction by court‑martial, be liable to suffer death."

10. Clause (a) of section 35 of the Act of 1932, under which the remaining petitioners have been found guilty, is worded as follows :‑ "

35. Any person subject to this Act who‑ (a) begins, incites, causes or conspires with any other persons to cause any mutiny in any of His Majesty's naval, military or air forces, or shall be punishable with death". Though the sentence impossible under these two provisions of law is that of death, by virtue of the provisions of section 74 of the Act of 1953 and section‑20 of the Act of 1932, any ‑ of the lesser punishments set out in section 73 of the Ac of 1953 and section 19 of the Act of 1932 can be awarded to the offenders, as was done in these two cases.

11. The offence of "mutiny" with which the petitioners were charged and for which they have been convicted, has not been defined in either of the two Acts mentioned above nor has it been defined in the Pakistan Penal Code, and, therefore, for finding out the meaning of this expression, we will have to look at its ordinary meaning. In the Law Lexicon by Aiyer, 1940 Edition, this expression is defined in the following words :‑ "Mutiny.‑The offence of mutiny implies collective insubordination, or combination on the part of two or more persons, subject to military law, to resist the lawful authority of superior military or naval officers, whether by violence or passive resistance ; or to induce others to resist such lawful authority. It is thus either (1) the overt act of insubordination, or (2) the combination which may or may not have resulted in such overt act, or (3) a combination to induce others to insub ordination." According to Oxford English Dictionary, 1908 Edition, "mutiny" means to rise in revolt, to refuse submission to discipline or obedience to the lawful command of a superior, especially in the military and naval services. "Mutiny" would, therefore, mean not only a revolt by the armed forces, but also the collective insubordination to a lawful command, or collective resistance to a lawful authority whether by violence or otherwise.

12. The Pakistan Army Act, 1952, like the Pakistan Air Force Act, 1953, does not define this expression, but in the Manual of Pakistan Military. Law, 1957, issued by the Ministry of A Defence, in the notes under section 31 of the first‑mentioned Act this term has been defined in the following words :‑ "The term `mutiny' implies collective insubordination, or a combination of two or more persons to resist, or to induce others, to resist, military authority." In the same volume, in the notes under section 33 of the Act which makes the disobedience of a lawful command punishable, the following examples of lawful commands are given:‑ "To take medicine. To enter hospital. To wear free spectacles. To do work of national importance during a strike," and under the same heading the following examples are given of commands which are not lawful. "To sign for pay when not received. To undergo‑a surgical operation. To do an act which is unlawful under the law of Pakistan."

13. The main distinction between sections 33 and 31 of the Pakistan Army Act, 1952, is that if the disobedience of a lawful command is by an individual he is liable to be punished under the first‑mentioned provision of law, but if the disobedience is by a combination of two or more persons it amounts to "mutiny" and is punishable under the second‑mentioned provision of law. The deciding factor in both the cases is whether the command was lawful or not. If a lawful command is given and is not obeyed by a person subject to military law, he would be committing an offence punishable under either of these two provisions of law. The position under the Air Force Acts of 1932 and 1953 appears to be similar.

14. In the case against Air Craftman Tausif Ahmad Siddiqi (petitioner in Writ Petition No. 924 of 1958), we were told that after the airmen at Chaklala had refused to take their meals in the officers' mess, the following routine order was issued on the even ing of the 6th of February 1958 and posted in the officers' mess‑ , "It has been observed that certain airmen do not take their meals in the Airmen's Mess. This results in considerable waste of food. In future, airmen may warn out for a particular meal 24 hours in advance, with the prior permission of Officer‑in‑charge, Airmen's Mess. Airmen are invariably to take their meals in the mess if prior approval for dining out has not been obtained."

15. It was contended by the learned counsel for the respon dents that evidence was led at the trial to show that in spite of this order, Mr. Tausif Ahmad Siddiqi did not take the dinner on the 6th of February 1958 and no other meal until the breakfast on the 9th of February 1958, nor was any request, or application, received from him to "warn out" for any particular meal between the 6th of February 1958 and, the 9th of February 1958. It was further contended that evidence was led at the trial to show that this petitioner was responsible for having the following poster typed and published: We, the airmen of P. A. F. Chaklala earnestly wish that the following grievances are redressed to ease the present situ ations : (1) The annual leave has been reduced to 36 days. It should remain 60 days as before. (2) The policy of issuing ration in kind to living‑out airmen should not be introduced. The existing rule of L.O.R.A. should continue. (3) Working hours now in force are not at all suitable to any airmen. The old working hours should be reinforced. (4) The present living conditions for us are far below the standard. Considerable improvement, e.g. fans in the barracks, hot water in the attached bathrooms of each barrack, cupboards and almirahs should immediately be provided. (5) It has reliably been learnt and brought to our notice through official letters from the authorities concerned that the crockery is going to be removed from the mess and the indivi dual airmen concerned would be required to bring his own mug and plate for meals. Curtains are already removed giving a clear proof of things yet to come. We wish the present standard of the mess to be maintained and aspire for an improvement. We have decided t9 continue the Hunger Strike till our above mentioned grievances are redressed. The sufferers." In this connection a reference was made to the evidence of the second witness (Flt.‑Lt. Mohsin Hayat Khan) and the sixth witness (Mr. Iqbal Ahmad), a nephew of Mr. Tausif Ahmad Siddiqi, who supported this part of the prosecution case.

16. Against the remaining petitioners, our attention, in parti cular, was drawn to the evidence of the first witness (Wing Com mander J. Afridi), a part of whose statement is reproduced below: "Every airman of the Station was marched to the dining hall and as they passed the food counter they were asked to eat if they wanted to eat. None of them took breakfast in the dining hall. Altogether the meals that were missed by the airmen were three meals on Sunday the 9th, three meals on Monday the 10th and breakfast on Tuesday the Ilth When I addressed the airmen on the morning of Monday the 10th and said : `1 want every one of you to go back to your messes and have your meals' I meant these words to be a command and not a request. * * * * * I was faced with a difficult situation as I knew that my orders had been disobeyed. I, therefore, thought it best to give them an opportunity to fall out and take their meals. * * * * * * Most advisable course in the circumstances was to give each one of them an opportunity to carry out the order and if anyone dis obeyed he was to march out of the room. * * * * * * * It was reported to me that my orders had been disobeyed. The reason why I did not place anyone in close arrest after they had disobeyed my orders to (have) their lunch was that it meant placing the entire of living‑in‑airmen, which was roughly about 400, in close arrest. I did not consider as Station Commander that such a step would be desirable. * * * There are no station standing orders as far as. I am aware to the effect that airmen must always eat in the mess and that they must not eat outside, but there are orders that they must not take their meals in their billets."

17. There can be no doubt that the orders given to the peti tioners and the other airmen to take their meals were disobeyed. The question is whether these orders were lawful and whether by disobeying them the petitioners rendered themselves liable for being convicted under section 35 of the Act of 1932. In our opinion, the word "lawful" in this context must be construed as meaning an order which is not against any law and not necessarily an order which is passed under any specific law, or rule, on the subject. The petitioners, admittedly, were "living‑in" Airmen, and, there fore, had to take their meals in the officers' mess. A clear order C was given to them to take their meals and for two continuous days they refused to obey that order. Refusal on their part to take their meals was not an individual act of insubordination, but was a collective act of insubordination, which rendered them liable to punishment under section 35 of the Air Force Act of 1932.

18. The case of Tausif Ahmad Siddiqi petitioner in Writ Petition No. 924 of 1958 is clearer still. Not only did he refuse to take meals in the officers' mess in spite of orders given to this effect, but he also took part in having an objectionable poster typed out and published. There was evidence on the record to connect him with the commission of the offence complained of. Whether that evidence was or was not sufficient to hold him guilty of that offence, was a matter for the Court Martial to decide and not for this Court to adjudicate upon.

19. In our opinion, as the records of these proceedings stand, it cannot be said that there is any such error apparent on their face which would justify this Court in issuing a writ of certiorari to quash the proceedings. There is thus no force in any of the two petitions and the same are accordingly dismissed‑with costs. A. H. Petitions dismissed.