Kazi Abdul Hameed Siddiqui Vs. Federation of Pakistan and others

IN THE FEDERAL SHARIAT COURT

( Original Jurisdictibthu)

'PRESENT:'

HON.MR.JUSTICE DR.TANZIL-UR-RAHMAN CHIEF JUSTICE

HON.MR.JUSTICE IBADAT YAR KEAN

HON.MR.JUSTICE ABDUL RAZZAQ A. THAHIM

SHARIAT PETITION NO.5/K OF 1991.

Kazi7Abdu1,Hameedi. * Petitioner Siddiqui i • t• Versus

The Federation of Respondents Pakistan etc.

For the petitioner- • Mr.Abdul Waheed Siddiqui, Advocate

For the respondents Nemo

Date of Institution 3-4-1991 Date of hearing 25-4-1991

Date of decision • • • 25-4-1991

S.T.No.5/K/1991.

a

JUDGMENT

DR.1TANZIL-UR-RAHMAN, CHIEF JUSTICE.- By this Shariat Petition, •the petitioner has challenged nt of the Office of Wafaqi Section 9(c) of Establishme‘ Mohtasib (Ombudsman) Order, 1983 as repugnant to the Injunctions of Islam as laid down in tip Holy Quran- and Sunnali.of the Holy Prophet. The section reads as follows :-

"9. Jurisdiction,. functions and powers Of mohtatb;-

(1)The Mohtasib may on a complaint by an aggrieved person, on a reference by the President, the Federal Council or the National Assembly, as the case may be, or on ,a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of maladministration on the part of any Agency or any of its officers or employees: Provided that the Mohtasib shall not have any jurisdiction to investigate or enquire into any matters which 17--

relate to, or are connected with, the defence of Pakistan or .any part thereof, the military, naval and air forces of Pakistan, or the matters covered by the laws relating , to those forces."

In support of the above petition, a\number of verses of the Holy Quran 'relating to cadal(justice). were cited by the learned 'counsel which relate, to a commandment for dispensation of justice in general terms.

It is to be appreciated that the laws relating to the Armed Forces provide for' the organization of the three Forces and also establish_ judicial hierarchy different from the hierarchy of the civilian organizations

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ISIP.No.5/K/1991.

For the decisiong of all matters, including the commission of offences, there are various established departments. The Forces have separate judicial system wherein the offences are triable through the Courts Martial according to the, procedure laid down in the Acts and Rules made thereunder. Previously, no right of appeal against the findings and decisions of these Courts was provided in the Act or Rules. However, there was a provision by way of remedy, for confirmation of sentences by higher authorities by which Review/Revision df findings, and sentences used to be sought and, if deemed proper,, used to be granted in appropriate cases.

The Federal Shariat Court in exercise of its suo moto powers to examine the existing laws on the touch-stone of the Holy Qur'an and Sunnah of the Holy Prophet( wkifflt4A0) examined the laws governing the Armed Forces and consequently found certain provisions of the said laws to be repugnant to the Injunctions of Islam, requiring necessary amendments so as to bring them into conformity with the Injunctions of Islam. Consequently on 13.10.1983 this Court vide its judgment in S.S.M.84, 85, 11 and 160/82 (reported in PLD 1985 Federal Shariat Court page 365) issued certain orders for amendment of the said laws.

• The said judgment was challenged in the Shariat Appellate Bench of the Supreme Court of Pakistan. 'The ,Etharj;4tT_AppelIate Benth hy_its:±judgMent,dated:18th SeptOmberi:19,88 held. that Islamic Injunctions of Adal, Qist and Ehsn warrant that an aggrieved party should be entitled to test the correctness of • a decision which results in deprivation of his livelihood.(PLD 1989 t-17-us S.C. 6). The judgment of the Shariat Court was/upheld. ‘

Consequently, the appellant i.e. Pakistan through Secretary, Ministry of Defence was directed to suitably amend Section 133-A of the Pakistan Army Act, 1952; section 162-A of the Pakistan Air Force Act, 1953; and section 138-A of the Pakistan Navy Ordinance, 1961 by providing a right of appeal against the orders passed by the Court Martials, except for petty offences. The necessary amendments were to be carried out by 1st January, 1989, whichhave been carried out in the terms indicated therein.

It will be appreciated that discipline is of prime importande in the Armed Forces. The Armed Forces can function only if discipline of the strictest kind is maintained in the organization and it is ensured that the ordets of the superiors are implicitly obeyed without any hesitation: To avoid delays in the matters, the disobedience or any breech of discipline is followed by prompt and strict disbiplinary action and for this purpose the':41i:LAY officers are vested with the requisite authority so that administration of day to day affairs is done without unreasonable delay. Keeping this in vies, the military organization has always been kept separate from the civil-administration. The poncept::of diSdipline IslamicHla*:::isL highly emphasised and: 114S-beencl given great importance.

Maintenance of morale is also insisted for discipline otherwise the under-current of disillusioned elements against the Command and leadership of the Armed Forces would place the Officers and other members susceptible to foreign or inimical intervention. Therefore, the Armed Forces leadership itself is always

A.P.ii.5/K/1991. - 5 -

'very keen to keep its image high and inspiring in the eyes of all concerned.

For the above purposes, the system of the Aimed Forces has an in-built machinery to exercise justice and compassion in the matters affecting the honout and property of its members. Besides, the Judge Advocate General and legal department, there are welfare', rehabilitation Chief Inspector,intelligence units and other departments as well that look after the grievances and welfare of the personnel.

Besides there is another aspect to be noticed. The •matters relating to the Defence Services are highly sensitive and extremely crucial for th6t.IDefence of the Country. Any discussion in publicEmay lead to the divulging of the secrets of the Services which may pose a serious threat to the safety, security and integrity of the Country.

In any case the Ombudsman is a recommendatory authority. Ultimate decision, vests in the President. In the instant Case the President of Pakistan is Supreme ComMander of the Armed Forces and if anybody is aggrieved of any finding or decision in appeal, review or, revision, it will be open to the aggrieved person to file petition to the President through Ministry of Defence in order to seek redress of his grievance.

We, therefore, do not find any repugnancy in crause(c)Tof section 9 to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet. The petition is didmissed,in limine.

( Dr.Tanzil-ur-Rahman Chief Justice , vv.-- i61 ( Abdul R ,,aq A. Thahim ) • dge . '

Karachi :24.4.1991/ Na seer.