Col (Retd.) Muhammad Akram vs. Federation of Pakistan through Secretary M/o Defence, Rawalpindi Cantt

IN THE FEDERAL SHARIAT COURT

(Original Jurisdiction)

PRESEN T

MR. JUSTICE RIAZ AHMAD KHAN, CHIEF JUSTICE

MR. JUSTICE DR. ALLAMA FIDA MUHAMMAD KHAN

MR. JUSTICE SHEIKH NAJAM UL HASAN

MR. JUSTICE ZAHOOR AHMED SHAHWANI

JUSTICE MRS. ASHRAF JAHAN

SHARIAT PETITION NO.4/1 OF 2008

Col. (Retd) Muhammad Akram son of Malik Fateh Khan, R/o 105 Race Course Road, Street 1, Rawalpindi Cantt.

..... Petitioner Versus

Federation of Pakistan through Secretary M/o Defence, Rawalpindi Cantt.

Respondent

Counsel for the Petitioner In person Counsel for Federal Govt. Mr. M. Parvez Khan Tanoli, Standing Counsel

For Pakistan Army Major Shah Jehan Khan, JAG, GHQ, Rawalpindi

For Pakistan Navy Capt. M. Nawaz Mirza and Commander Sami Waheed

For Pakistan Air Force Group Captain Rana Nazir JAG, Headquarter Peshawar

Date o f Institution 21.07.2008

Date o f hearing 27.09.2016

Date of decision 3j .10.2016

Shariat Petition No.4/1 of 2008

JUDGMENT

ALLAMA DR. FIDA MUHAMMAD KHAN. Judpe.- The petitioner Col. (Retd) Muhammad Akram has challenged the Pakistan Army Regulation (Rule) 133 Clause ‘q ’, ‘r* and ‘u ’ and the parallel Rules o f the Pakistan Navy and the Pakistan Air Force, if any, and prayed that the same may be declared to be against the Injunctions of Islam. The impugned rules read as follows:- “ 133. Vacation of Appointment. An officer will vacate his appointment in the following circumstances. This Rule does not, however, affect the rules in the Pay and Allowances Regulations, under which command charge, staff or additional pay may, in certain cases, continue to be admissible to him and his successor notwithstanding the fact that he has ceased to actually perform, the duties connected with that appointment:-

q. From the date o f being taken into military or civil custody or that of suspension from duty, on a charge for an offence o f which he is afterwards convicted by a criminal court or a court martial or by an officer exercising authority under Section 23 PAA (see Note 2 below).

r. From the 22nd day o f being placed under arrest or suspension from duty, for an offence other than falling under sub-rule q above (see note 2 below).

u. On attachment to any formation/unit by GHQ on disciplinary grounds (see also Note 2 below).”

Note 2: Reference clause q, r and u above. I f the officer is subsequently acquitted or for any reason is not brought to trial or his character is vindicated to the satisfaction of the Chief of the Army Staff by such enquiries as may be made under Rule 328, he may be re­ appointed to the post he had vacated from the first day o f vacation of his original appointment.

If an officer is convicted and receive a sentence of less than dismissal he may, at the discretion o f Corps, Divisional, Log Area or independent Brigade Commander be re-appointed from the date he returns to duty.”

2.The learned counsel/petitioner has submitted in his petition, that:

if an Army Officer, holding temporary rank, is taken into custody or is suspended from duty, on a Charge for an Offence of which he is afterwards convicted by a criminal court or court-martial or by the officer under Section 23 of the Pakistan Army Act, he is to vacate his appointment from the date o f custody/suspension from duty under Army Regulations, Vol l(Rules) Rule 133 ‘q’ or from the 22nd day of being placed under arrest or suspended from duty, for an Offence other than falling under sub-rule ‘q’ ibid ( A. R. (Rule 133 V ). He is also to vacate his appointment from the date of his attachment to a

unit/formation on disciplinary grounds i.e. on a charge for an Offence. (Rule) 133 ‘u ’).

* The Officer, on vacation o f his appointment, is to lose his temporary rank as well under A R (Rule) 149 ‘b ’ (1). He also mentioned that promotion upto and including the rank o f ‘M ajor’ is by time scale, and to the rank o f Lieut- Colonel and above is by selection.(AR (Rule) 204).

* Loss of ‘Rank’ means deprivation o f ‘Rank’ emoluments and position as such. The Officer stands deprived o f his means of livelihood. The Officer, who is taken into custody or is suspended from duty or is attached on disciplinary grounds, remains innocent till he is proved ‘Guilty’ under Law. (Sura ‘Al-Noor 24, Ayat 12-13 - PLD 1982-Jour-13)

* A Govt, servant remains entitled to service emoluments and all other benefits and facilities provided to him for the period he remains suspended from duty. (PLD 1994 SC 72 at 78, Citation ‘F ’).

3.The Federation on its behalf and on behalf o f the Pakistan Armed Forces, in its comments, has expressed serious reservations about the pleas raised by the petitioner. In addition, the Pakistan Air Force and the Pakistan Navy submitted separate comments also

wherein all o f them have opposed the petition. For the sake o f brevity, the objections raised by them are summarized as under:- a) . The Pakistan Army Act, 1952 ( hereinafter referred to as the said Act) had already been examined on the touchstone o f Injunctions o f Islam but no citizen of Pakistan ever brought to the notice o f the Honourable Court the impugned provisions inspite o f notification o f a public notice;

b) . The Armed Forces have their peculiar justice system and by virtue o f sub section (2) o f sub section (5) o f the Code o f Criminal Procedure 1898 the provisions o f Cr.P.C. for the trial o f offences under the Pakistan Army Act. are not attracted;

c) . After amendment in the said Act pursuant to the judgment o f this Court as well as the Honourable Shariat Appellate Bench o f Supreme Court, appellate forum has been provided;

d) . Joining employment in the Armed Forces is voluntary mid nobody is forced. Thus whoever joins the Armed Forces willingly accepts the compliance of all Rules and Regulations enforced therein;

e) . A crime committed by a common person may not be a big crime but the same crime amounts to a heinous crime when committed by an official o f the Armed Forces because it is an urgent requirement in peace and war.

f). Maintenance of discipline is imperative and foremost responsibility o f the command.

4.We have heard learned Petitioner as well as the learned standing counsel for Federation and have thoroughly examined the impugned Rules in the light o f their submissions. The learned Petitioner reiterated the points mentioned in his Petition and contended that the officer on vacation of his appointment loses his temporary rank and its emoluments which is against the Injunctions o f Islam.

5.It is pertinent to mention here that the impugned Rule 133 pertains to vacation, appointment and various sub rules to the same have been enacted to show the effective date and elaborate procedure in that connection. It has, however, been specifically mentioned right in the beginning that this rule does not affect the rules in Pay and Allowances Regulations under which command charge, staff or additional pay may, in certain cases, continue to be admissible to him and his successor notwithstanding the fact that he has ceased to actually perform, the duties connected with that appointment. It means that this rule mentions only the conditions for vacation o f appointment. So far as

the pay and allowances are concerned, these are governed by Pay and Allowances Regulations and, therefore, apprehension by the learned petitioner that such an officer stands deprived o f his means of livelihood has no basis. According to the said rules the officer loses only the temporary rank and not the substantive rank nor its emoluments to which he remains duly entitled. It has been added in the Note 2 to the impugned Rule that in case of acquittal, he may be reappointed to the post he had vacated from the first day of vacation o f his original appointment. In case o f his conviction, if he receives a sentence o f less than dismissal, he may be reappointed from the date he returns to duty.

6.So far his pay and allowances are concerned, the impugned rule specifically provides, as mentioned above, that these will remain unaffected as the Pay and Allowances Regulations has duly taken care o f the same. The learned counsel/petitioner could not give any reference to the specific Regulations in the Pay and Allowances Regulations which debars such officers from receiving their Pay and Allowances for the substantive ranks they hold.

In this view o f the matter, we have found this petition misconceived and dismiss it accordingly.

CHIEF JUSTICE

MR. JUSTICE SfffilKH NAJAM-UL-HASAN

MR. JUSTICE ZAHOOR AHMED SHAHWANI

MRS. JUSTICE ASHRAF JAHAN

Announced in open Court on 3J/X/24Jl . at Islamabad Umar Draz/*