1999 PLP 359 (MLD)

6. It is appropriate at this juncture to reproduce the relevant provisions of the Act and Pakistan Penal Code hereunder:- "S.2(dd)(i).-Persons not otherwise subject to Air Force law who are accused of (i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government. S.37(e). Mutiny--Any person subject to this Act who commits any of the following offences, that is to say:- (e) endeavours to seduce any person in the Military, Naval or Air Forces of Pakistan from his duty or allegiance to the Government. S.160.- Remedy against order, finding, or sentence of Court martial.--?(1) Any person subject to this Act who considers himself aggrieved by any order passed by a Court-Martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such Court-Martial, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates. Any person subject to this Act who considers himself aggrieved by a finding or sentence of a Court-Martial which has been confirmed may present a petition to the Central Government or the Commander-in?-Chief who may pass such order thereon as it or he thinks fit. S.161.- Annulment of proceedings. -The central Government or the Commander-in-Chief may annul the proceedings of any Court-Martial on the ground that they are illegal or unjust. . S.

162. Bar of appeals.

No Court shall question the correctness, legality or propriety of any proceeding or decision of any court-martial and no remedy shall lie in respect of any such proceedings or decision save as provided in this Act. S.162-A. Court of Appeals.

Any person to whom a court-martial has awarded a sentence or had under an Islamic law may, within sixty days from the date of the sentence, prefer an appeal against the finding and sentence of the court-martial to a Court of Appeals consisting of the Chief of the Air Staff or an officer, being a Muslim, designated by him in this behalf, hereinafter referred to as the Court of Appeals. S.131, P.P.C. Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his duty. Whoever abets the committing of mutiny by an officer, soldier, sailor or airman, in the Army, Naval or Air Force of Pakistan, or attempt to seduce any such officer, soldier, sailor, or airman from his allegiance or his duty, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

7. I have gone through the respective contentions of learned counsel for the petitioner as well as respondent No.3 and perused the record with the assistance of the learned counsel. It is admitted fact that charge has been framed against the petitioner's son. To find out whether the ingredients of the above mentioned sections are attracted or not which cannot be determined without recording evidence, this is a matter of evidence to be gone into by the competent forum i.e. Field General Court Martial and not by this Court in exercise of writ jurisdiction. Since the trial has commenced, therefore, the petitioner's son can f raise all these points before the said Field General Court Martial on the basis of the grounds being agitated before this Court. The question of mala fides, if any, is again a question of fact which can only be determined after recording the evidence. When the charge is defective or does not give full notice to the accused of the allegations charged then it vitiates the whole trial. In such situation the petitioner's son has a right under the provisions of the Pakistan Air Force Act to file appeal before the competent Authority. The material question arises out of the proceedings of the parties whether the high Court can take cognizance of the matter or not at this stage. The Supreme Court has laid down a rule in a case reported as A. Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 SC 353) and the relevant observations at page 361 are reproduced hereunder: - Undoubtedly one primary question which the High Court had to face immediately on entertaining a case like the present one is: whether, the ordinary course of trial before the Court concerned should be allowed to be deflected through an approach to its special of inherent jurisdiction--the writ jurisdiction under Article 199 of the Constitution is one of them. The basic rule was laid down by this Court in the well?known case bf Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 and it was ruled that if prima facie the offence had been committed justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty they have a right to be declared as 'honourably acquitted by a competent Court'. On the other hand if the evidence against the accused discloses a prima facie case then 'justice clearly requires that the trial should proceed according to law'. It was also held that the inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. The power given by section 561-A, Cr.P.C., it was held can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural Statute. 'Undoubtedly, the case of Ghulam Muhammad had come before the Supreme Court through an interruption by the High Court under section 561-A,Cr.P.C. The order of the High Court quashing the proceedings before the trial Court was set aside and it was directed that the criminal cases were to proceed before the Court concerned in accordance with the normal law.' The aforestated view and principle was reiterated by the Supreme Court in other cases as well, which came before it through the jurisdiction of the High Court other than section 561-A,Cr.P.C. They included revisional and writ jurisdictions. See Abdur Rehman Bajwa v. Sultan and 9 others (PLD 1981 SC 522) and Abdul Aleem v. Special Judge (Customs), Lahore (1982 SCMR 73). The case of Abdul Aleem had arisen out of a similar case. A learned Special Judge/Customs notwithstanding the legal objections raised from the accused side with regard to the competency of the criminal proceedings before him formally charged the accused. A criminal revision filed by him having been dismissed he sought relief for quashment of the criminal case through a writ petition and the same had to be dismissed mainly on the ground that the High Court would not ' in its discretion 'jurisdiction short circuit the normal procedure of trial as provided by Law'. This Court refused to grant leave to appeal. It was observed as follows:- We are of the view that the approach of the learned Single Judge in the High Court in refusing to deflect the normal course of a criminal case through exercise of writ jurisdiction is not only salutary but also in accord with the principles laid down by this Court in Ghulam Muhammad v. Muzammal Khan and 4 others (PLD 1967 SC 317), although the case dealt with therein..." In a very recent case which had arisen out of the same law relating to Offences in Respect of Banks (Special Courts) this Court again emphasized the same principle. See Muhammad Aslam v. The State (1991 SCMR 600, page 26). In view of the abovementioned dictum laid down by, the Supreme Court of Pakistan the contention of the petitioner's counsel to interfere by this Court at this stage has no force. The petitioner's son has alternative remedy under the Provisions of the Pakistan Air Force Act, therefore, writ petition is not maintainable as held by the Supreme Court of Pakistan in a case reported as Ch. Muhammad Ismael v. Fazalzada, Civil Judge Lahore (PLD 1996 SC 246), and relevant observation is reproduced hereunder: - It is also noteworthy that the jurisdiction conferred on the High Court under Articles 199 and 203 of the Constitution is of extraordinary nature and is, therefore, to be exercised sparingly. The High Court has to be specially conscious in exercise of its Constitutional jurisdiction when other adequate remedy is available to the party invoking that jurisdiction. Mrs. Shahida Zaheer Abbasi challenged the proceedings of the Field General Court Martial on the touchstone of the fundamental rights and the proceedings were taken in violation of the Provisions of the Pakistan Army Act. The petitions were dismissed by the majority judgment reported as Mrs. Shalliu; Zaheer Abbasi and 4 others v. President of Pakistan (PLD 1996 SC 632). The conviction and sentence awarded by the Military Courts we challenged by Sabur Rehman and the appeals were dismissed by majority judgment reported as Sabur Rehman and another v. Government of Sindh and three others (PLD 1996 SC 801). M.K. Khandekar challenged the sentence awarded to him under section 37 of the Air Force Act, 1953 but the learned Division Bench of the Lahore High Court refused to exercise discretion in favour of him and the writ petition was dismissed reported as M.K. Khandekar and others v. Pakistan (PLD 1959 Lahore 482). In view of the abovementioned circumstances, the writ petition is not maintainable at this stage as the petitioner has alternative remedy to challenge the same before the higher forum provided under the Act. Even otherwise, pleas raised by the petitioner cannot be decided without recording the evidence For the foregoing reasons, this writ petition has no merit and the same is dismissed in limine. N.H.Q/R.436/L/?????????????????????????????????????????????????????????????????????????????????? Petition dismissed