2001 PLP 1692 (YLR)

6. The hearing of main Execution Application is taken up. Mr. Abdul Rauf on behalf of the judgment debtors has argued that the decree passed by this Court is coram non judice on the ground that the judgment debtor No. 1 is a part of Pakistan Army and the judgment debtor No.2 is subject to the Army Act, 1952. In view of the above, it is the case of Mr. Abdul Rauf that the judgment debtors cannot be made liable under this execution. He refers to the case of Rasheed Ahmed v. The State PLD 1972 SC 271 and argues that the question of jurisdiction can be raised at any stage. There is no cavil this proposition. According to him, in an unreported case of Muhammad Aslam v. Incharge National Logistic Cell and others C.P. No. 87 of 1998), the entire law has been placed and discussed and it has been held that the individuals are bound by the Army Act. He refers to the following:-- "The plain reading of the above provisions of law clearly shows that the present petition before this forum is 'coram non judice'. In the case of Force Commander, Airport Security Force Karachi and others v. Haji Muhammad Rashid and another 1996 SCMR 1614, it was observed by the apex Court at page 1629 as under:

'It may be stated that subsection (1) of section 5 empowers the Federal Government to apply all or any provisions of the Army Act to any force raised and maintained in Pakistan under the authority of the Federal Government or a Provincial Government, whereas subsection (2) thereof lays down that on such notification being made any provisions of the Army Act so applied shall have effect in respect of persons belonging to any such force as they have effect in respect of persons subject to the Army Act holding in the Pakistan Army the same rank as or equivalent to that which the aforesaid persons hold for the time being in the said force and shall have effect in respect of person employed by, or are in the service of, or are followers of, or accompany any portion of any such force as they have effect in respect of person subject to the Army Act under clause (c) of subsection (1) of section

2. It may also be pointed out that subsection (3) provides that while any of the provisions of the Army Act applies to any such force, the Federal Government may, by notification, direct by what authority any jurisdiction, powers or duties incidental to the operation of these provisions shall be exercised or performed in respect of that force any may suspend the operation of any other enactment for the time being applicable to that force'." In the case of Dr. Aon Muhammad Khan v. Lt. Gen. (Retd.) Saeed Qadir and others PLD 1987 SC 490, it was observed at page 493 as under:

(xiii) 1978-85. Chief Executive and then, from 1981 onward Chairman, National Logistics Cell. This appointment was held by the answering respondent in addition to his duties as Q.M.G. The answering respondent created the National Logistics Cell (NLC). He did so in pursuance of a directive received by him on 23-7-1978. By 6-8-1978 the action plan prepared by the answering respondent was approved by the Federal Cabinet. The NLC successfully undertook the re organisation of Karachi port so as to clear 2 million tons of wheat through this period in between October, 1978 and April, 1979. The NLC moved this wheat from Karachi to the remotest corners of the country. During the last 7 years the NLC has organised the Karachi Port, built and rehabilitated hundreds of miles of roads, undertaken rapid handling of rice crop exports, built 150,000 tons of rice storage facilities, built another 150,000 tons of fertilizer storage facilities, transported fertilizer to the remotest corners of the country, moved crude oil from the oil fields throughout the country and operated and maintained the largest transport fleet in Pakistan. The NLC has also created large engineering workshop facilities, reorganized the Lahore dry port and established facilities in the country for major repairs of traction motor of locomotives for the Pakistan Railways." Again in the same citation at page 500, the word -"logistics" has been defined as under:

"The word 'logistics' according to the Chambers Twentieth Century Dictionary means "the art of movement and supply of troops". This necessarily involved the management, operation and control of mechanically propelled vehicle. Therefore, logistics apparently is an allied field with the automobile engineering. " In an unreported C.P. No.2502 of 1995, the legal status of National Logistic Cell (NLC) was determined by a Division Bench of this Court and it was observed that the entire set up of National Logistic Cell (NLC) is controlled by Army Officers. The Establishment is neither commercial nor industrial. The civil man-power working in National Logistic Cell (NCL) is incidentally connected with the Armed Forces. In the case of Brigade Commander Headquarters Field Command, NLC, Karachi v. The State (1996 MLD 469), it was observed that the trial of the Army Personnel could only be held by the Military Court. In the case of Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 Supreme Court 632), it was observed that under Article 199(3), the jurisdiction of High Court is barred and it cannot superintendent the affairs of the Armed Forces. In the case of Sh. Liaqat Hussain and others v. Federation of Pakistan and others (PLD 1999 SC 504), it was observed that civil offences committed by civilians having nexus with the Armed Forces are triable by the Military Courts. In the case of Muhammad Mushtaq v. Federation of. Pakistan (1994 SCMR 2286), it was observed that under Article 199 for grant of relief under sub-Article (1) thereof the relief regarding fundamental rights is included in Sub-Article (1) is clearly barred under Article 199(3) with reference to Sub-Article (1) thereof, therefore, High Court has no jurisdiction in such matters. The decision of Apex Court in case of Federation of Pakistan and 2 others v. Khurshid Ahmed and another (1999 SCMR 664) relied upon by the learned counsel for the petitioner is of no avail to the petitioner as it also supports the contention of the respondents. The up-shot of the above discussion is that the petition is not maintainable and is misconceived. Consequently, it stands dismissed alongwith listed application, with no order as to costs. However, the petitioner may exhaust his remedy before the proper forum provided under law." It is the case of Mr. Abdul Rauf, therefore, that the judgment debtor No.l is also not liable. In an unreported case of Raza Enterprises v. Government of Sindh (Suit No.1201 of 1998), a similar question had been raised by Major (Retd.) Abdul Rauf, Advocate, and similar arguments were advanced by him. Whilst distinguishing the above judgment and all that is mentioned therein, it was held that in fact the National Logistics Cell is not a part of the Pakistan Army and not controlled by them. It was further held that the NLC works for profit and gains and is therefore, a body corporate. Otherwise also, as is evident in the present case and arguments that have been led that the National Logistics Cell has insured its vehicles. This categorically shows that the NLC is capable of entering into contractual obligations in their own name. An application under Order, VII, Rule 11, C.P.C. was also filed in which all the above objections were taken. After hearing, the J.Ds withdrew the said application and abandoned the plea. The case, therefore, of Mr. Abdul Rauf as regards in the present case is not maintainable. It has already been held that the J.Ds are not a part of the Pakistan Army wherefore the question of applicability of Pakistan Army Act, 1952 which may bar the jurisdiction cannot be taken into account. The judgment passed earlier in suit has not been appealed against. It is the case of the judgment debtors that the judgment being coram non judice is not liable to be executed. In the case of Gul Muhammad MIR Bahar v. National Logistic Cell and 2 others (1999 CLC 2032), it has been held that this Court has jurisdiction to proceed in the matter. The relevant portions are reproduced as under:

"...The second ground is that this Court has no jurisdiction in view of the Rule laid down by the Honourable Supreme Court in the case of Force Commander, Airport Security Force, Karachi and others v. Haji Muhammad Rashid and another 1996 SCMR 1614. During the course of hearing, learned counsel for the defendant No.l referred further cases in support of his contention that the jurisdiction of this Court is barred. Reliance was placed on Mrs. Shahida Zaheer Abbasi and 4 others v. President of Pakistan and 6 others PLD 1996 SC 632, Abdul Ghaffar Lakhani v. Federal Government of Pakistan and others PLD 1986 Kar. 525, Brigade Commander Headquarters Field Command NLC Karachi v. The State 1996 MLD 469 and the case of Muhammad Nawaz Baloch v. President of Pakistan and 4 others 1999 MLD 359 . ....In the case of Mrs. Shahida Zaheer Abbasi (supra), again the matter was considered in reference to the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan, 1973. While following the rule laid down in the. case of Brigd. (Retd.) F.B. Ali v. The State (PLD 1975 SC 506) it was held that the bar contained in Article 199(3) of the Constitution on the powers of High Court for exercising writ jurisdiction is not absolute in nature and that it could be exercised in the cases, namely, where the impugned action is mala fide or without jurisdiction or coram non' judice. Again, in that case, section 9 of the Code of Civil Procedure, 1908 in reference to Act, 1855 was not considered. Therefore, the rule laid down in the case of Mrs. Shahida Zaheer Abbasi is of no help to Mr. Abdul Rauf. No provision of any statute or enactment or any judicial precedent was cited at bar which may indicate that a civil Court has no jurisdiction to entertain a claim under the Fatal Accidents Act, 1855 against an Army Organisation.

6. In the case of Abdul Ghaffar Lakhani (supra), one of the questions involved was in reference to the Constitutional jurisdiction to be exercised by the High Court under Article 199 of the Constitution, 1973; the rule laid down in the case of F.B. Ali was reiterated. The case of Muhammad Nawaz Baloch also refers, to the jurisdiction of High Court under Article

199. In the instant case, it is yet to be established by the defendant No.2 that the Tribunal constituted for his trial was constituted under some special law barring jurisdiction of the ordinary Civil Court and that such Tribunal was lawfully constituted and the trial conducted was concluded in a lawful manner exonerating the said defendant from the allegations. Only under such circumstances ouster of jurisdiction is completed. No material was placed to show that the jurisdiction of this Court is ousted in the aforesaid manner. I am fortified in my view by the rule laid down by the Honourable Supreme Court in the case Zafarul Ahsan v. Republic of Pakistan (PLD 1960 SC 113). Section 9 of the C.P.C., indeed, bars a suit which is even impliedly barred. There is no element of impliedness in this case. In the case of Zafarul Ahsan (supra) the appellant was retired from service for misconduct by the President under sub-clause (b) of clause (5) to Article 6 of the Laws (Continuance in Force) Order, 1958 against which the appellant moved High Court of West Pakistan through writ petition against the President's order which was dismissed on the ground that the Court had no jurisdiction to consider the merits of the case. The appeal was dismissed with no order as to cost but following observation was made by the Full Bench of Honourable Supreme Court while defining as to how the jurisdiction of Court is ousted:

....If a statute provides that an order made by an authority action under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Court is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by' the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omissions or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of law. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this subcontinent, be treated as an order under the statute ...."

7. The objection to the maintainability of these suits were raised for the first time in these proceedings by the learned counsel appearing for the National Logistic Cell. In previous suits which were decreed against the same defendant and wherein the same counsel was appearing, such objections were not raised. Therefore, I have dealt in detail with the respective submission of both the learned counsel, Mr. Nasir Maqsood has drawn my attention to the case Rukhsana Parveen Nazir v. National Logistic Cell Through Commander and 2 others 1995 MLD 633 and Mai Nooran v. National Logistic Cell, Ministry of Defence, Government of Pakistan through its Commander and 2 others 1995 CLC 1969. In all the said three cases, judgments/decrees were passed against one of the same defendant, now, the defendant No. 1 in the present suits. I am told that the appeals filed against these reported cases were also rejected by the Division Benches of this Court. Even in the case Syed Ghaffar Hussain and 3 others v. The Commander (Commanding Officer) Headquarters National Logistic Cell, Karachi and 3 others 1994 MLD 2010, the Commander/respondent himself appeared but he .did not raise any objection to the maintainability of that suit..."

7. In a case being Execution No.153 of 2000 filed by the same Gul Muhammad Mir Bahar (being an execution of judgment of Gul Muhammad Mir Bahar v. National Logistic Cell and 2 others (1999 CLC 2032) referred herein above it has been ordered, ......In this view of the matter execution application is allowed and it is ordered that the assets of the judgment debtor as mentioned in the schedule of the properties annexed with this execution application be attached by the Nazir of this Court and thereafter proceedings for sale of the said articles be carried out. The sale proceeds be deposited in Court and same be used in the first instance for the satisfaction of the decretal amount. Orders accordingly. Nazir may seek assistance of the Law Enforcement Agency if felt necessary under the circumstances." In another case being Execution No.165 of 2000 filed by one Aisha Bibi against NLC, the following order was passed:

Judgment and decree was passed on 20-11-1998, execution was filed on 13-1-2000, which apparently was served on the Judgment Debtor No. 1, against whom it is sought to be executed, service was effected on 3-1-2001 but no objection appears to have been filed as till to date The execution is allowed. Nazir is accordingly directed to attach the property mentioned in the schedule attached to the execution application, on the pointation of the decree holder. Nazir may seek assistance of the law enforcement agency if felt necessary under the circumstances."

8. In view of the above, the objections taken by Mr. Abdul Rauf are not well founded. The Execution Application is allowed. I direct the Nazir of this Court to proceed to attach the articles, goods, motor vehicles or other such items as may have been mentioned in the Execution Application for the purposes of satisfaction of the decretal amount. In the -event upon settlement the said amount is not paid within 30 days, the Nazir shall proceed to sell the said movable items and deposit the sale proceeds in Court for the purposes of satisfaction of the decretal amount. In the event of refusal of the judgment debtors to allow attachment, the Nazir may seek assistance of the law enforcement agency if felt necessary under the circumstances. H.B.T./M-222/K Execution application allowed/Order accordingly.