1988 PLP (C (PLC(CS))

MUHAMMAD IRSHAD KHAN (MEMBER).--The relevant background giving rise to the present appeal, briefly speaking, is that the appellant while serving as Upper Division Clerk in the National Savings Organization, was dismissed from service consequent upon his conviction by a Military Court. On an appeal filed by the appellant, the Martial Law Administrator, Zone-A, in exercise of the powers conferred under section 143 of the Pakistan Army Act, remitted the balance of sentence vide his order dated 23-1-1985. After having been released in pursuance of the said order of the Martial Law Administrator the appellant filed a review petition requesting for his honourable acquittal whereon the following order was passed by the Martial Law Administrator, Zone-A:- "Granted pardon in respect of convict Muhammad Idrees S/o Khurshid Ali. The M.L.A. is also pleased to direct that he should be re-instated in service." The above order was conveyed to the Director, National Savings, Multan Region, Multan, by the Headquarter Martial Law Administrator, Zone-A, vide a letter dated the 7th of September, 1985. The appellant accordingly reported for duty to the Joint Director, Directorate of National Savings, Multan, who informed him that the aforesaid order of the Martial Law Administrator, dated 7-9-1985, had been sent to the Chief Director, Central Directorate of National Savings, for obtaining his order. Ultimately, however, the appellant was informed by the order impugned herein that after due consideration, his request for re--instatement in service had not been acceded to, hence this appeal.

2. The appellant has mainly relied upon a Directive of the Chief Martial Law Administrator dated 25-9-1985, the relevant portion thereof is reproduced below:-

4. However, in cases where while granting pardon to a Government servant an MLA directs that the person be re-instated in service, the direction shall be implemented."

3. On the other hand, the learned counsel for the respondents mainly emphasized that the service matters being beyond the scope of the exercise of the powers under section 143 of the Pakistan Army Act, the orders of the Martial Law authorities with regard to the re-instatement of the appellant in service are not enforceable, and that the grant of pardon does not have the effect of restoring a convicted person to a public office forfeited by, or in consequence of conviction. Reliance was placed on P L D 1977 Supreme Court 212.

4. It is a settled position that a free pardon, b itself, does not operate to restore a convicted person to a public office forfeited in consequence of conviction as affirmed by the Honourable Supreme Court in the above referred authority relied upon by the learned counsel for the respondents. In the same decision, however, it was also enunciated that such a pardon may remove disability for fresh grant of employment. Further, according to statements of law referred to in the same decision, a pardon restores to the offender his eligibility to hold public office, including an office which may have been forfeited by his conviction. It, therefore, follows that the full pardon granted to the appellant at least rendered him eligible to his re-instatement in service. It is further to be seen that the aforesaid Directive of the Chief Martial Law Administrator in the Scheme of the Martial Law had a binding force and now being covered by Article 270-A(2) of the Constitution of the Islamic Republic of Pakistan be deemed to be and always to have been validly made and shall not be called in question in any Court on any ground whatsoever. The respondents, therefore, were not competent to disregard the said directive.

5. Another significant aspect of the matter is that at the relevant time the Chief Martial Law Administrator in his capacity as President of Pakistan, was the competent authority in respect of the Federal Civil Servants under the Civil Servants Act, and as such also his aforesaid Directive had a binding effect. The position being so, the respondents were neither competent nor justified to act in disregard and in violation of the aforesaid Directive of the Chief Martial Law Administrator. We, therefore, hold that the impugned order was incompetent and unjustified.

6. In view of the foregoing the appeal is accepted, the impugned order is set aside and it is directed that the appellant shall be re-instated in service. The relevant authority in the Respondent Department shall also pass an appropriate order in accordance with Rules, about the treatment of the intervening period during which the appellant has remained out of service.

7. No order as to costs.

8. Parties to be informed accordingly. A.A./385/Sr.F Appeal accepted.