2021 PLP 2095 (MLD)

This Intra Court Appeal (hereinafter 'ICA') filed under section 3 of Law Reforms Ordinance, 1972 (hereinafter 'LRO, 1972'), against the judgment dated 16.09.2019 passed by learned single Judge in writ petition No. 2775/2011 whereby, orders of conviction of Naik Mumtaz Hussain (hereinafter 'respondent'), passed by summary Court martial (hereinafter 'S.C.M.') dated 22-12-2010 and the court of appeal dated 01-03-2011, under Pakistan Army Act, 1952 (hereinafter 'Army Act'), were set aside and matter was remanded back to trial court, with a direction to first fulfill the mandatory requirements as envisaged under Army Act and thereafter proceed with the matter in accordance with the law. Respondent was convicted and awarded sentence of dismissal from service by S.C.M., which was upheld by the court of appeal. Challenging his conviction and sentence, writ petition as mentioned above, was filed which resulted in pronouncement of impugned order.

2. At the very threshold of arguments, before dilating upon the merits of the case, the learned counsel for the appellant has been asked to assist this Court regarding maintainability of this ICA.

3. Learned counsel for the appellant has vehemently argued that this ICA is very much competent and maintainable. That, under LRO, 1972, a person aggrieved from the order of a single judge passed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter 'the Constitution') can prefer an appeal before a bench of two or more judges of the High Court. That, learned single judge has not applied the correct law while deciding the writ petition filed by the Respondent, hence while accepting this ICA, order of single judge be set aside.

4. Before we proceed further, it will be beneficial to have a glance over the relevant provision of Law governing the ICA before the High Court i.e. section 3 of LRO, 1972, reproduced infra:

3. Appeal to High Court in certain cases. - (1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction. (2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a single Judge of that Court under [clause (1) of Article [199] of the Constitution of the Islamic Republic of Pakistan] not being an order made under sub-paragraph (i) of paragraph (b) of that clause:

Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article [199] arises out of any proceedings in which the law applicable provided for at least one appeal [or one revision or one review] to any court, tribunal or authority against the original order. This provision is self-explanatory and provides that a right to file ICA is not an absolute and unqualified right rather same is subject to certain limitations and conditions provided therein. Under subsection (1) of section 3, ICA is maintainable against a decree passed or final order made, by a single Judge of this Court only if same is passed in the exercise of its original civil jurisdiction. Similarly, although ICA is maintainable against order passed by a single judge under clause (1) of Article 199 of the Constitution but same is not maintainable if order is made under sub-paragraph (i) of paragraph (b) of that clause.

5. To decide the issue of maintainability ICA in hand, proviso attached to subsection (2) of section 3 is relevant which, in most unequivocal terms, lays down that remedy of ICA is not available against an order of single judge having arisen out of proceedings in which applicable law provides remedy of at least one appeal, revision or review to any court, tribunal or authority against the original order. Reliance is also placed upon the decision of august Supreme Court in SME Bank Limited through President Islamabad and others v. Izhar Ul Haq (2019 SCMR 939),where august Court has categorically held that: 'where the proceedings from which the writ petition has arisen provided for either review, revision or appeal, then in terms of proviso to S. 3(2) of the Law Reforms Ordinance, 1972, remedy of Intra Court appeal would not be available against the judgment passed by the Single Judge in the writ petition' Term "original order" used in proviso to section 3(2) LRO, 1972 means an order passed by the original/first fora and not in the order passed by a single judge of this Court in Constitutional Petition. Order passed by a single judge in constitutional petition cannot be termed as an original order as required by section 3 of LRO, 1972 or an order passed in original civil jurisdiction of High Court because such order is passed in Constitutional Jurisdiction conferred by Article 199 of the Constitution. To further clarify this legal point, we would like to refer to the decision of august Supreme Court in Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman/M.D., Karachi reported at PLD 2001 SC 182, where august Court has held that: " The writ jurisdiction is a Constitutional jurisdiction, and, therefore, it follows that a judgment deciding a Constitutional petition would not be a judgment in the exercise of the original civil jurisdiction within the meaning of subsection (1) of section 3 of the said Act." Similarly, in Mst. Karim Bibi and others v. Hussain Bakhsh and another cited as PLD 1984 SC 344, prestigious Supreme Court had authoritatively elaborated the term 'original order' as used in proviso to section 3(2) of LRO, 1972 in the following words:- "The crucial words are the "original order". It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not. Apparently the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced." (emphasis supplied) Further, it is of utmost importance to clarify that availing of such remedy of appeal, revision or review is not a sine qua non to question the maintainability of ICA and it is sufficient if applicable law in the matter provides such remedy. It is irrelevant whether such remedy is availed by the aggrieved person or not. There may be the cases where despite the availability of an appeal, revision or review against the original order, such remedy was not actually availed by the aggrieved party. Guidance is sought from Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman/M.D., Karachi Reported at PLD 2001 SC 182, where august Supreme Court has expounded this concept in following words: " The proviso to section 3(2) of the Law Reforms Ordinance (XII of 1972) as amended bars the Intra-Court appeal to a Bench of two or more Judges of the High Court in case the law applicable to the proceedings provided for at least one appeal, revision or review against the original order. In other words the bar under the proviso is applicable, if the law applicable to the proceedings provided for a forum for appeal, revision or review against the original order. This bar under the proviso is attracted in case such a forum is provided under the law applicable, even though the aggrieved party did not actually avail of the remedy provided by means of the appeal, revision or review. This is the only rational and harmonious interpretation that can be put on this proviso in consonance with the intention of the Legislature " This discussion leads us to the indisputable conclusion that when a remedy by way of appeal, revision or review is available against an order passed by the original/first forum, then ICA would not be maintainable against order passed by single judge of this Court under clause (1) of Article 199 of Constitution in a petition challenging the order of such original/first forum.

6. As far as lis in hand is concerned, although matter before this court is as to whether against an order passed by a single judge of this Court against the sentence passed by S.C.M., ICA is maintainable or not, but for the purpose of clarity of law, we would like to elaborate the types of Courts martial and remedies available against their decisions under the Army Act and Rules made thereunder. Under the Army Act, section 80 enlists four kinds of Courts martial i.e. General Courts martial, District Courts martial, Field General Courts martial and summary Courts martial. As a ready reference, section 80 of the Army Act is provided below: "

80. Kinds of Courts Martial. For the purposes of this Act, there shall be four kinds of Courts martial, that is to say,

(1) general Courts martial; (2) district Courts martial; (3) field general Courts martial; and (4) summary Courts martial." A compact scheme pertaining to remedies against the decisions of aforementioned Courts martial has been provided under the Army Act. Section 119 provides that finding or sentence of a general, district or field general Court martial shall be valid only when same is confirmed as provided by this Act i.e. as provided under section 120 to section 125 of the same Act. Similarly, under section 126, any finding or sentence of a Court martial which requires confirmation may be once revised. Similarly, under section 131, any person who considers himself aggrieved by the finding or sentence of a general, field general or district Court martial may submit a petition, before confirmation of such finding or sentence, to the officer empowered to confirm it and, after confirmation, to the Federal Government, or the Chief of the Army Staff or to any prescribed officer who is superior in command to the one who confirmed such finding or sentence. Further, section 133B(1) provides remedy of appeal to a person to whom a Court martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service to a Court of Appeals. Relevant provisions of the Army Act are provided hereinafter:

119. Finding and sentence not valid unless confirmed. No finding or sentence of a general, district or field general Court martial shall be valid except in so far as it may be confirmed as provided by this Act.

126. Revision of finding and sentence._(1) Any finding or sentence of a Court martial which requires confirmation may be once revised by order of the confirming officer, and, on such revision, the Court, if so directed by him, may take additional evidence. (2) The Court, on revision, shall consist of the same officers as were present when the original decision was passed unless any of those officers are unavoidably absent. (3) In case of such unavoidable absence, the cause thereof shall be duly recorded in the proceedings, and the Court shall proceed with the revision, provided that, if a general Court martial, it still consists of five officers or, if a field general or District Court martial, of three officers.

131. Remedy against finding and sentence of Court martial.___(1) Any person subject to this Act who considers himself aggrieved by the finding or sentence of a general, field general or district Court martial may submit a petition, before confirmation of such finding or sentence, to the officer empowered to confirm it and, after confirmation, to the Federal Government, or the Chief of the Army Staff or to any prescribed officer who is superior in command to the one who confirmed such finding or sentence. (2) Any person subject to this Act who considers himself aggrieved by the finding or sentence of a summary Court martial may submit a petition to the Federal Government, or the Chief of the Army Staff, or any officer empowered to act under section 128. 133B. Court of Appeals for other cases. ___(1) Any person to whom a court-martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service after the commencement of the Pakistan Army (Amendment) Act, 1992, may, within forty days from the date of announcement of finding or sentence or promulgation thereof, whichever is earlier, prefer an appeal against the finding or sentence to a Court of Appeals consisting of the Chief of the Army Staff or one or more officers designated by him in this behalf, presided by an officer not below the rank of Brigadier in the case of General Court-Martial or Field General Court-Martial convened or confirmed or counter-signed by an officer of the rank of Brigadier or below as the case may be, and one or more officer, presided by an officer not below the rank of Major General in other cases, hereinafter referred to as the Court of Appeals. Provided that where the sentence is awarded by the court-martial under an Islamic law, the officer or officers so designated shall be Muslims:

Provided further that every Court of Appeal's may be attended by a judge advocate who shall be an officer belonging to the Judge Advocate General's Department, Pakistan Army, or if no such officer is available, a person appointed by the Chief of the Army Staff. (2) A Court of Appeals shall have power to,

(a) accept or reject the appeal in whole or in part; or (b) substitute a valid finding or sentence for an invalid finding or sentence; or (c) call may witness, in its discretion for the purpose of recording additional evidence in the presence of the parties, who shall be afforded an opportunity to put any question to the witness; or (d) annual the proceedings of the court-martial on the ground that they are illegal or unjust; or (e) order retrial of the accused by a fresh court; or (f) remit the whole or any part of the punishment or reduce or enhance the punishment or commute the punishment for any less punishment or punishments mentioned in this Act. (3) The decision of a Court of Appeals shall be final and shall not be called in question before any court or other authority whatsoever. Further, against every finding of summary Court martial, remedy of review is available as section 128 of the Army Act provides that the proceedings of every summary Court martial, without delay, shall be forwarded to an officer having power to convene a district court martial, and such officer, or any higher authority, may, for reasons based on the merits of the case but not on any merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the Court martial might have passed. Rule 116 of Pakistan Army Act Rules, 1954 provides that the proceedings of a summary court-martial shall, immediately on promulgation, be forwarded, through Judge-Advocate General, Pakistan Army, to the officer authorised to deal with them under section 128, who after review shall return them to the corps of accused for preservation in accordance with sub-rule (2) of Rule

129. Relevant provisions of the Army Act and Pakistan Army Act Rules, 1954 are provided below for kind perusal: "Section

128. Transmission of proceedings of a summary Court martial. The proceedings of every summary Court martial shall without delay be forwarded to an officer having power to convene a district court martial, and such officer, or any higher authority, may, for reasons based on the merits of the case but not on any merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the Court might have passed." "Rule

116. Review of proceedings:- The proceedings of a summary court-martial shall, immediately on promulgation, be forwarded, through Judge-Advocate General, Pakistan Army, to the officer authorised to deal with them under section 128, who after review shall return them to the accused's corps for preservation in accordance with sub-rule (2) of Rule 129." Perusal of all these provisions clearly establishes that remedies of appeal, revision, review, filing a petition etc. are available to aggrieved persons, against the original orders passed by different Courts martial. Therefore, we have no hesitation to hold that the bar contained provided in proviso to section 3(2) LRO, 1972 is fully attracted and ICA is not maintainable against the order passed by a single judge pertaining to any order passed by any of the Courts martial under the Army Act.

7. Now reverting back to case in hand, respondent was tried and convicted by S.C.M. under the Army Act and he was awarded sentence of dismissal from service. Against such order of conviction, there were two remedies available, to wit, remedy of review under section 128 of the Army Act read with Rule 116 of the Army Act Rules 1954 and second under section 133B(1) of the Army Act to prefer an appeal before court of Appeals. In presence of such remedies, against the original order of conviction and sentence passed against the respondent, ICA of appellant is not maintainable against the impugned order of single Judge. Reference is made to Fayaz Khan v. Government of Pakistan Through Secretary Aviation Cabinet Secretariat, Aviation Division, Islamabad and another cited as 2020 SCMR 432.

8. As far as contention of learned counsel for the appellant regarding merits of this case is concerned, it is pertinent to mention that it is settled law that a Court should first attend the question of maintainability of a lis and if Court reaches to the conclusion that such lis is not maintainable, Court should not comment upon the merits of the case. In this regard, reliance can be placed upon the decision of august Supreme Court in Khalid Mehmood's case reported at (1999 SCMR 1881).

9. To sum up, without touching the merits of this case, we hold that in presence of twofold remedy, appeal under section 133B(1) of the Army Act and review under section 128 of the Army Act read with Rule 116 of the Army Act Rules, 1954, against the original order of dismissal from service passed by summary Court martial against the respondent, remedy of Intra Court Appeal is not available to the appellant against the impugned order of single judge of this Court, hence this ICA is dismissed being not maintainable. SA/F-19/L Appeal dismissed.