2010 PLP 227 (CLC)

MAULVI ANWARUL HAQ, J.

The petitioner while performing his duties as a Wing Commander in the Medical Administrative Wing of PAF Base, Lahore, was charged with several offences mentioned in charge sheet dated 30-1-2002. The charges were formally read over to the petitioner on 6-2-2002 by a Field General Court Martial convened" to try the petitioner. The trial accordingly commenced and ultimately the petitioner was found guilty of the second and third charges and was sentenced to simple imprisonment for two months as also dismissal from service. An appeal filed against the said conviction and sentence was dismissed by the Court of Appeals.

2. Learned counsel for the petitioner contends that the offences are stated to have been committed during the period January to June, 2000 while he was on secondment to PAF. He was, however, reverted to Pakistan Army w.e.f. 18-9-2000 vide Annexure "B" whereas the trial commenced against him on 6-2-2002. The precise contention is that he could not have been tried by the FGCM in view of the bar contained in section 121(2) of the Pakistan Air Force Act, 1953, after six months of his reversion to the Army. Also refers to section 2(e) read with section 3 of the said Act of 1953. Learned Standing Counsel for Pakistan, on the other hand, draws my attention to Annex-C to the writ petition by which order the petitioner who by then had been promoted as a Lt. Colonel in the Pakistan Army was again posted to the PAF Base, Lahore, w.e.f. 9-11-2001. His contention is that when the trial commenced the petitioner was subject to the provisions of PAF Act, 1953 and the trial, the conviction and the sentence recorded are with jurisdiction.

3. I have given some .thought to the respective contentions of the learned counsel and the learned Law Officer and have examined the file in the light of the said provisions of law being relied upon by the learned counsel for the petitioner. The petitioner while serving as a Major in the Pakistan Army was seconded to PAF in the corresponding rank of Squadron Leader vide Annexure "B". He was reverted back to Pakistan Arm w.e.f. 25-9-2000. Vide Annexure "A" he was promoted as a Lt. Col. w.e.f. 6-10-2000. Vide Annexure "C" he was again seconded PAF at PAF Base, Lahore w.e.f. 12-11-2001. The trial, as noted above, commenced before the FGCM on 6-2-2002.

4. The precise contention of the learned counsel for the petitioner is that under section 2(e) of the PAF Act, 1953, the petitioner upon secondment was a person subject to PAF Act, 1953. However, the application of the said Act of 1953, terminated on 25-9-2000 when he was sent back to the Pakistan Army and according to the learned counsel in terms of section 121(2) of the said Act, the petitioner could not have been tried for an offence after six months of the said date.

5. The learned Standing Counsel, on the other hand, is of the opinion that since the petitioner was, in fact, subject to PAF Act, 1953, on the date when the trial commenced, the bar contained in section 121(2) of PAF Act, 1953, would not be applicable.

6. I deem it appropriate to reproduce hereunder the relevant subsections (1) and (2) of the said section 121:-- "

121. Liability of offender who ceases to be subject to Act.

(1) Where an offence under this Act had been committed by any person while subject to this Act, and he has ceased to be so subject, he may be taken into and kept in Air Force custody, and tried and punished for such offence as if he had continued to be so subject. (2) Except as provided by subsections (3) and (4) any such person shall not be tried for an offence, unless his trial commences within six months after he has ceased to be subject to this Act." It will be seen that subsection (1) is an enabling provision inasmuch as it enables the respondent to take into custody and try and punish a person for an offence committed by him under the said Act while he was subject to the Act at a point of time he ceases to be so subject. Subsection (2) lays down the limitation i.e. that such a person shall not be tried for such an offence unless his trial commences within six months of the date he ceases to be subject to the said Act. According to the learned counsel for the petitioner, after the expiry of six months from the first reversion of his client from PAF to Pakistan Army, the bar contained in section 121(2) shall become operative and notwithstanding the fact that he was subject to the PAF Act, 1953, when the trial commenced the bar would remain effective.

7. I am unable to agree with the learned counsel. On a proper interpretation what is required is that a person should either be subject to the PAF Act, 1953, when he is tried for an offence committed under the Act or six months had not elapsed Since his ceasing to be so subject to the said Act.

8. This is the natural consequence flowing from the fact that it is necessary that the offence must have been committed by the person committing the same while he was subject to the Act. Consequently according to the facts of the present case, there is no denial that the petitioner was subject to PAF Act, 1953 when the offences he was charged with were alleged to be committed and the same was the position when the trial commenced. The writ petition accordingly is dismissed but without any orders as to costs. S.A.K./M-589/L Petition dismissed.