2001 PLP 2679 (YLR)

(b) That under the Pakistan Army Act, 1952, a person subject to the said Act can be tried summarily or by a Court‑martial and if a charge is disposed of summarily by the competent authority in his discretion, then such person cannot be tried by the Court‑martial for the same offence as provided under section 23 of the Pakistan Army Act, 1952, read with Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. (c) That the sentence of severe reprimand awarded to the petitioner can either be awarded in a summary trial or by the Court‑martial, therefore, any other punishment on the basis of same charge could not be awarded without observing the mandatory provisions of Regulation/ Rule 269‑A of the Army Regulations (Rules), 1986, and thus, the removal of the petitioner from the Pakistan Army was mala fide and without jurisdiction. (d) That no doubt the Federal Government is competent to remove a person from service under rule 9‑B(1) of the Pakistan Army Act Rules, 1954, subject to the proof of misconduct through proper inquiry as provided under the law but the stigma of removal from service as punishment without following the proper procedure would be coram non judice. He argued that non- observance of law or violation of the mandatory provisions of law would be defined as malice in law and a mala fide action is not out of the ambit of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel concluded that since the case in hand would not fall in any of the category of the cases mentioned in Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973, therefore, not withstanding the bar of jurisdiction contained in the said Article, it would not be beyond the scope of judicial review of this Court to undo the injustice done to the petitioner.

3. Lt.‑Col. Iqbal Hashmi, Assistant Judge, Advocate‑General, on the other hand, has contended that an officer in the opinion of the Federal Government who has by reason of misconduct become unworthy of holding the commission in the Pakistan Army, shall be liable to be removed from the service and the Federal Government while exercising powers under rule 9‑B(1) of the Pakistan Army Act Rules, 1954, having found the petitioner guilty of misconduct for his act referred to above while forming an opinion that he was not a fit person to hold commission in the Pakistan Army removed him from service. The A.J.A.‑G. has stated that due to previous behaviour and immature action, the officer was reported to be misfit in the Pakistan Army. Learned Standing Counsel added that this Court in exercise of its Constitutional jurisdiction is not supposed to go into the question of the degree and nature of misconduct through the scrutiny of evidence and that the behaviour and misconduct of the officer being subject to the satisfaction of the concerned authorities is not adjudicatable in the present petition.

4. We have heard the learned counsel for the petitioner as well as learned Federal Counsel/Standing Counsel and Lt.‑Col. Iqbal Hashmi, Assistant Judge, Advocate‑General and have thoroughly considered their arguments. Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973, is reproduced as under:‑‑‑ "Article 199(3).‑‑An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions . of service, iii respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law."

5. The punishment of severe reprimand was awarded to the petitioner for commission of an offence under section 55 of the Pakistan Army Act, 1952, whereas the reason for his removal from service was the charge of misconduct. This be noticed that Regulation/ Rule 269‑A provides the procedure to deal with the cases in which it is not practicable or desirable to convene a Court‑martial for the trial of an office who was found guilty of misconduct or inefficient or in a case ‑in which it is not expedient either to hold a Court of Inquiry or call for the officer's explanation, the Chief of the Army Staff may submit a report containing the circumstances available in the evidence in support thereof with his recommendation for decision of the Federal Government under the said Regulation, and further the Chief of Army Staff has also the power either to order for a Court of Inquiry or to proceed without such inquiry. The relevant Regulation/Rule 269‑A of the Army Regulations (Rules), 1986, provides as under:‑‑ "269‑A. Dismissal, removal, premature or voluntary retirement/ resignation of officers for misconduct etc. ‑‑‑Procedure‑‑‑The following procedure will be observed to deal with cases in which it is not practicable or desirable to convene a Court‑martial for the trial of an officer against whom misconduct or inefficiency etc. is imputed and his retention in service is not considered to be ‑in the interests of the Army:‑‑ (a) The Chief of the Army Staff may order a Court of Inquiry to investigate the matter and submit its findings together with his recommendations to the Government, for decision, or (b) The Chief of the Army Staff may call upon an officer to show cause why action should not be taken against him for his dismissal, removal or premature retirement from the service under the Pakistan Army Act Rules and submit the officer's explanation together with his recommendations to the Government for decision; or (c) When it is not expedient either to hold a Court of Inquiry or call for the officer's explanation, the Chief of the Army Staff may submit a report giving all the circumstances of the case and evidence, if any available, together with his recommendations for the decision of the Government."

6. The examination of the Regulation/Rule would show that for the purpose of removal of a person from service for the charge of misconduct, if the Chief of Army Staff submits a report without any inquiry as required under clause (c) of rule 269‑A, the Federal Government can decide in either way. In the present case, the Court of Inquiry was dispensed with and the Chief of Army Staff while proceeding under clause (c) of rule 269‑A submitted report to the Federal Government on the basis of which the petitioner .was removed from service. Under section 16 of the Pakistan Army Act, 1952, the federal Government may dismiss or remove from service any person subject to the said Act and under rule 9‑13(1) of the Pakistan Army Act, Rules, 1954, if an officer, in the opinion of the Federal Government, has by reason of misconduct become unworthy of holding a commission in the Pakistan Army, would be liable to be removed from the service.

7. The petitioner was removed from service under rule 9‑B(1) of the Pakistan Army Act Rules, 1954, for misconduct. It may be pointed out that under Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973, no order can be passed by this Court in exercise of its Constitution of jurisdiction in relation to a person, (a) who is a member of the Armed Forces of Pakistan (b) who is for the time being subject to any law relating to any of those Forces in respect of his terms and conditions of service, and (c) in respect of any matter arising out of his service or in respect of any action taken ink relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. The action against the petitioner of removal from the Pakistan Army was in relation to his service as a member of Armed Forces of Pakistan and, therefore, its legality or validity cannot be questioned on any ground including mala fide before this Court due to bar contained under Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973. This may be observed that mala fide action is a mixed question of law and fact and unless it is proved that the officer was awarded punishment due to personal malice, the malice in law cannot be pleaded for such action for some irregularity in the procedure or dispensation with the normal procedure in the exercise of powers under the law. In the present case, the Chief of Army Staff was competent to submit report on the basis of material available with him under Regulation No.269‑A(c) of the Pakistan Army Regulations (Rules), 1986, without constitution of Court of Inquiry, therefore, there was neither personal malice of the concerned authorities or malice in law in awarding punishment to the petitioner. We may further observe that the sentence of severe reprimand, awarded to the petitioner by the Commandant Officer would not create a bar for the Chief of Army Staff to take action in exercise of the powers available with him under the Pakistan Army Act, 1952, read with Pakistan Army Act Rules, 1954, and Pakistan Army Regulations, 1986, framed thereunder. Therefore, the contention of the learned counsel that the petitioner having been awarded punishment of severe reprimand could not be awarded the punishment of dismissal from service has no substance. It is neither a case of double punishment nor misuse of the jurisdiction by the competent authority.

8. For the foregoing reasons, we do not find any substance in this Constitutional Petition, which is dismissed in limine with no order as to costs. H.B.T./1‑66/K Petition dismissed.