P L D 2009 Quetta 27 (PLP)

AKHTAR ZAMAN MALGHANI, J.

Following relief has been claimed in the instant constitutional petition:-- "In view of the same it is, therefore, accordingly prayed that conviction of the petitioner recorded by Field Court Material and maintained by appellate authority is illegal, unlawful and with no legal sanctity of law, therefore, after setting aside the same impugned orders of commitment to jail dated 27-11-2007 the petitioner may be acquitted from the charge and ordered to be released from jail in the interest of justice, fair play and equity."

2. Briefly stated, facts of case are that petitioner, who was Naik (Clerk) in 171 Moutain Regiment Artillery and attached with Regiment 84 Field, was tried by Field-General Court Material under section 59 of the Pakistan Army Act, 1952 for aiding/abetting the act of terrorism by planting a bomb at Barkhan Telephone Exchange and possessing without licence a Megarof pistol and 60 rounds. After trial the General Field Court Material found petitioner guilty and sentenced him under section 59 on 29th November, 2007 as under:-- (a) To suffer R.I. for 17 years. (b) To be dismissed from service. (c) To be reduced to the ranks. (d) To pay Rs.2,000 as fine.

3. The appeal filed by petitioner before the competent authority was dismissed, however; sentence of two and half years out of seventeen years R.I. was remitted.

4. We have heard the learned counsel for petitioner as well as standing counsel. Learned counsel for petitioner vehemently contended that petitioner was in custody since 13-3-2005 but no benefit of section 382-B, Cr.P.C. was extended in his favour in violation of Article-4 of the Constitution of Pakistan. He further argued that conviction of petitioner under sub-clause (a) of section 59 of Army Act, 1952 was illegal and without jurisdiction as the alleged offence falls under section 59(b) providing maximum punishment of five years. He next argued that conviction of petitioner under section 7(b) of Anti-Terrorism Act read with section 109, P.P.C. was also illegal as jurisdiction to try and convict under provisions of Anti-Terrorism Act, 1997 exclusively vested in Anti-Terrorism Court and Field Court Material had no jurisdiction in such cases. He also argued that petitioner was un-represented before Court Material and no opportunity to engage a counsel was afforded to him on account of which whole trial had vitiated. Learned counsel was also of the view that charge was defective, as such; conviction was not maintainable. In support of his arguments learned counsel referred to judgments reported in 2008 SCMR 1384, 2007 SCMR 399, PLD 2001 Quetta 64, PLD 1990 Karachi 470, PLD 1996 SC 801, PLD 1989 SC 26, PLD 1977 SC 52, PLD 1977 Karachi 833, 1999 SCMR 2078, 1987 SCMR 1382, PLD 1981 SC 522, 1981 SCMR 1237, 1983 SCMR 732 and 1986 PLC (CS)

560. On the other hand learned standing counsel vehemently contended that the instant petition was not maintainable as this Court had no jurisdiction to interfere in the findings of General Field Court Material which findings were final as provided under section 133-B of the Army Act, 1952 and in light of Article 199 (3) of Constitution of Islamic Republic of Pakistan. He 'further argued that provisions of section 382-B, Cr.P.C. were not applicable to the persons convicted under the Army Act, 1952. Similarly charge has to be framed in accordance with provisions of section 111 (4) of Pakistan Army Act, 1952 and accumulated sentence for all offences is to be awarded as enunciated in rule 54 of Pakistan Army Act Rules. Learned Standing Counsel next argued that petitioner was rightly found guilty under sub-clause (a) of section 59 of Army Act, as he had committed a civil offence entailing punishment up to imprisonment for life.

5. We have carefully considered the contentions put forth by parties' learned counsel. As regards maintainability of instant petition it is by now well-settled that ordinarily this Court in view of bar by Article 199(3) of Constitution has no jurisdiction in the matters relating to members of armed forces or who for the time being is subject to any law relating to armed forces in respect of any action taken in relation to him ass member of armed forces but this Court can examine cases where impugned order, judgment is mala fide or without jurisdiction or corum non judice. The Honourable apex Court in the judgment reported in PLD 2001 SC 549 held as under:-- "This Court can interfere only in extraordinary cases involving question of jurisdictional defect when proceedings before that forum become coram non judice or mala fide. The matters relating to the members of the Armed Forces or who for the time being are subject to any law relating to any of these Forces in respect of terms and conditions of service or in respect of any action taken in relation to him as members of Armed Forces or as a person subject to such law, is barred by Article 199(3) of the Constitution. Article 8(3) of the Constitution also envisages that the provisions of this Article shall not apply to any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge or their duties or the maintenance of discipline among them. According to section 133(3)(B) of the Act the decision of the Court of appeal is final and cannot be called in question before any Court or authority whatsoever". "By now it is well-settled principle of law that the High Court under Article 199(3) of the Constitution can examine the cases falling within three categories, namely, where impugned order/judgment, is mala fide, or without jurisdiction or coram non judice." In another judgment reported in PLD 1996 SC 632 the Honourable Supreme Court in this regard held as under:-- "It is quite clear from the above-quoted passage that the bar contained in Article 199(3) of the Constitution on the powers of the High Court is not absolute in nature. At least in respect of three categories of cases, namely, where the impugned action is mala fide, or without jurisdiction or coram non judice the bar of Article 199 (3) is not applicable".

6. Admittedly petitioner was subject to Army Act 1952 and was rightly tried by Field-General Court Material for civil offences under section 59 of Pakistan Army Act, 1952 which provides that any person subject to the Army Act, 1952 who at any place in or beyond Pakistan commits any civil offence shall be deemed to be guilty of an offence against the Army Act. Civil offence has been defined in subsection (3) of section 8 of the Army Act, 1952 providing that "civil offence" means an offence which, if committed in Pakistan, would be triable by a criminal Court as a Court of ordinary criminal justice in Pakistan or established elsewhere by authority of Federal Government, therefore, Anti-Terrorism Court in relation to Army Act, 1952 is a Court of ordinary criminal justice and offences falling within its exclusive jurisdiction could be tried by General Field Court Material under section 59 of the Army Act 1952, if the person committing such offence is subject to the Army Act, 1952.

7. Section 59 of the Army Act, 1952 provides two different sentences under sub-clauses (a) and (b). Under sub-clause (a) if the offence is one which would be punishable under any law enforced in Pakistan with death or with imprisonment for life the accused shall be liable to suffer any punishment assigned for offence by the said law or such less punishment as mentioned in the Army Act whereas under sub-clause (b) in any other case the accused shall be liable to suffer any punishment assigned for the offence by law enforced in Pakistan or rigorous imprisonment for a term which may extend to five years or such less punishment as mentioned in the Army Act. The petitioner has been found guilty under section 59 for committing civil offence punishable under section 7(b) of Anti-Terrorism Act, 1997 read with section 109 of Pakistan Penal Code and for possessing arms and ammunition without licence punishable under section 13 read with section 9 of Arms Ordinance, 1965 and was sentenced by Field-General Court Material to 17 years. Section 7(b) of Anti-Terrorism Act as it is at present, provides imprisonment of either description, on conviction, for a term not less than 10 years but may extend to imprisonment for life and fine, however, this amendment was brought in section 7(b) vide Act-II of 2005 by substituting "five years" and "fourteen years" respectively whereas punishment provided under section 13-E Arms Ordinance is up to seven years or fine or with both. It is well settled that an accused person is liable to conviction provided for offence at the time of commission of that offence and if any amendment is brought in statute enhancing the sentence afterwards the accused could not be legally convicted for such enhanced sentence and any such order would be totally without jurisdiction. In the instant case appellant has been charged for abetting in planting bomb near Barkhan Telephone Exchange and according to charge the day of occurrence was 7th February, 2005 whereas amendment was brought in section 7(b) of Anti-Terrorism Act vide Act-II of 2005 promulgated on 11th January, 2005 prior to commission of offence, as such; he has rightly charged and convicted under section 59(a) of Army Act, 1952 as under rule 54 of Pakistan Army Act Rules the Court constituted under Army Act shall award one sentence in respect of all the offences of which the accused is found guilty, therefore, the sentence provided under Arms Ordinance, 1965 would not bring the case of petitioner under sub-clause (b) of section 59 as punishment provided for committing offence under section 7(b) is up to imprisonment for life.

8. As regards not awarding benefit of section 382-B, Cr.P.C. suffice to observe that under section 135 of the Army Act, 1952 the sentence is to commence on the date on which original proceedings were signed by President, therefore, in presence of such special provisions in the Army Act, 1952, in our considered view, section 382-B, Cr.P.C. is not legally applicable to the sentences awarded under the Army Act, 1952. In this regard we are fortified by judgment reported in 1984 PCr.LJ 1379 wherein, it was observed as under:-- "It is, per se, doubtful if the provisions of section 382-B of the Criminal Procedure Code would be applicable to cases decided under the Army Act as distinct from cases decided under the Code of Criminal Procedure. The Army Act devises a separate and independent scheme in relation to trials for punishment of crimes and sentences. In our view, this provision is not attracted".

9. We also find no substance in the contention of learned counsel that section 7-B of the Anti-Terrorism Act, 1997 is no more on the statute book and conviction of petitioner under said section was illegal because petitioner has not been convicted under section 7-B but under sub-clause (b) of section 7 of Anti-Terrorism Act.

10. As regard defect in charge, it may be observed that we have gone through the charge wherein not only date on which occurrence took place but also brief substance constituting offence have also been stated, as such; the objection is overruled.

11. Similarly we find no substance in the contention of learned counsel that petitioner was un-represented during trial as there is nothing on record, which could suggest that petitioner intended to engage a counsel of his choice but he was declined such opportunity. Even in memo. of petition no such objection has been raised.

12. Learned counsel also objected upon trial of case in light of section 92 of the Army Act, 1952 but after having gone through provisions of said section we are of the view that the said section is not applicable to the instant case as at the time of trial petitioner was subject to the Army Act, 1952 and have not ceased to be subject to the Act.

13. Adverting to last limb of arguments of learned counsel with regard to admissibility of confessional statement we are afraid that while exercising constitutional jurisdiction we cannot go into such question being finding of facts arrived at by General Field Court Material competent to decide such facts as no mala fide has been alleged against members of General Field Court Material nor any jurisdictional defect has been found in such findings. 13-A. The case laws referred to by learned counsel are distinguishable as most of judgments pertain to cases tried under ordinary law or by Courts constituted under Material Law Orders. For the foregoing reasons, we find no merits in the instant petition which is dismissed accordingly. S.A.K./9/Q Petition dismissed