Arif Hussain Vs Federation of Pakistan

PESHAI,I/AR HIGH COURT ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

JADGMENT SHEET

ll/P No.l43-A,/2018.

Date of hearing I 2.1 2.201 8.

Petitioner/s (Ard Hussain & Abid Hussain) by Mr. Usman Saleem Awan, Advocate.

Respondent/s (Federation of Pakislan & others) by Syed Hamad Hussain Shah Gilani, Assist: Attorney General.

SYED MUHAMMAD ATTIQUE SHAH.J.

Petitioners Arif Hussain and Abid Hussain through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 have prayed as under:-

"That orders datecl: 18.10.2017 and 28.08.2017, whereby the pension of tlte petitioners wus witltheltl on tlte grountl that they were acquitted on the basis of compromise, from 09.07.1995 to 07.04,2017 nre illegal, against Pakistan Army Act 1952 and ArmY Pension Regulation 2010, unhwful, witlrout lawful authority, without jurisdictiott arbitrary, malaJitle, petverse, in utler violation of law ttrttl rules, consequently, of no legal elfect AND praying lhal both the oulers be gruciously be set aside. Furlltermore, directing the respondenls to release pay, allow the petitioners tlte oulstandittg pension alogwith lhe annuol inctease antt I5% compound interest till the full and Jinol payment".

2.Brief but relevant facts of the case are that the petitioners were serving in Pakistan Army and after completion of their services they were retired on 1993 and 1985 respectively and were awarded pensions in accordance with law. That on 09.07.1995 a case FIR No. 195 was registered against the petitioners under section 302134 PPC at Police Station, Haripur. That due to registration of said case, the pensions of the petitioners were stopped despite that compromise has been effected between the parties and as a result thereof, the present petitioners have been acquitted from all the charges.

3.Arguments of iearned counsel for petitioner as well as leamed Assistant Attorney General heard and record available gone through.

4.The only question in the instant writ petition is that whether pensions of the petitioners can be withheld on the ground of their involvement in criminal case. Respondents in response to the writ petition submitted their parawise

comments and took piea that "Payment of pension is subject to good conduct and when a pens ioner is convicled due to criminal offence, the payment of pension is forfeited. In this respect they referred Rule-4) and 4l-A of Pension Regulation Vol_II, 2010", which are reproduced as under:-

40. "CHAPTER VI-REDUCTION OR

FORFEITI]RE OF PENSION Reduction or forfeiture of pension of military pensioner who is convicted of a serious crime or is guilty of misconduct j a. Crime or misconduct not of a political natve. If a military pensioner is convicted of a serious crime by court of law or is guilty of grave misconduct, which is not of a political nature the following procedure shall be followed>

(1)If a pensioner is senlenced to imprisonment for a criminal offence, his pension shall be suspended from the date of his imprisonment and the case shall be reported al once by the pay disbursing officer to Audit O.ffice. The later shall take up the case for the orders of the sanctioning authority.

(2)ln case where a pensioner is kept in police or jail custodY as an under-triql prisoner and ls eventually sentenced lo a term of imprisonment for uiminal offence, the suspension of Pension shall take ffict from the date of imprisonment onlY.

(3)The sanctioning authoritY, shull decide the case in consultation with the Audit OJJice' and if necessarY, with the civil authorities also, whether the olfence is a serious one and if so, he shall order the removal. of the pensioners name from the Pension list, from the date of the T commencement of his

imprisonment. Pen.sion lhereupon shall cease to be payable from that date.

(4)If the sanctioning aulhority decides that the olfence is nol so serious as to justify the removal of the pensioner's name from the pension list, it shall not be remoted; the payment of arrears of pension due from date of last payment before imprisonment shall be made on release from prison.

(5)If pensioner is sentenced to imprisonment for criminal olfence by a lov,er Courl but is qcquitted, on appeal, by a higher court, the pension withheld shall be restored.

(6)If a pensioner is imprisoned for debt, pension shall continue to be paid.

(7)If a pensioner is guilty of grave misconduct not falling under the preceding clquses, it shall at once be reporrcd to the sonctioning authority which may, if it considers it *iusti/iable, order, suspension of his pension from a date to be specified. The sanctiuning authority shall subsequentlY in|estigate the case in consultation v)ith the Audit Of/ice and the civil authorilies, if necessarY, and maY withhold, reduce or continue the pension in full from a dqte to be specified by it not earlier than the date of original suspension. b Crime or misconduct of a political nature If a pensioner is convicled of a crime or is guilty of misconduct, of a political nature his case shall forthwith be reported bY the Audit Office to the sanctioning authority, which on the adminislrution concerned, maY order the (servicc forfeirure of his pension and disability Pension, familY pension drawn bY adult males only, and children's allowance) from a date to be sPecified. In a cose in which the Pension?r is senlenced to imPrisonment' pension shall pending the order of the sanctioning authoritY, be suspended from the date of his imprisonmenl.

4l . Restoration of nension Ibrfeited under the prece dins Rule.

A pension reduced, wilhheld or forfeited under rule 10 or 21 A and 78 of VolumeJ of these regulations, may be restored infull or in part by the sanctioning authority in consultation with lhe local Government or administration concerned in political cases and with Controller of Mililary Pension and the civil authorities, if necessary, in other cascs. ln the cose of a pensioner undergoing imprisonment any action under this rule shall only be taken on his application after release, bul, in no case, shall pension be sqnctioned for the period of imprisonment in jail for a serious crime.

5.Perusal of ibid rules would show that pension can only be withheld when a pensioner is convicted/sentenced to imprisonment, but in the present case, the petitioners were not convicted, rather they were acquitted from the charges on the basis of compromise. When specifically asked, learned Assistant Attorney General could not controvert the same, thus, it is established that the pensions ofpetitioners were wrongly and iliegally withheld by the respondents.

Now coming to the question of acquittal of the petitioner on the basis of compromise in this regard it is observed

that all acquittals are certainly honourable. In the case tiled: Dr.

Muhsmmad Islam instructo Animal Husbandrv In-Service Trib unal Truinins Institute Daudzai, Pesltawar District Vs, Government of N.|{.F.P through Secretarv, Food, Agriculture, Livestock dnd Coooerative Deparlment, Peslrawar and 2 others 1998 PLC C.S) 1430 (Supreme Court of Pakistan) it is held that.-

"lYe are inclined to uphold the above view inasmuch as all acquittals even if these are based on benefit of doubt are honourable for the reason that the prosecution has not succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character. It may be noted that there are coses in which the judgments are recorded on the basis of compromise behueen the parties and the accused acquitted in consequence thereof. What shall be the nature of such acquittals ". All acquittals are certainlY honourable. There can be no acquittals, which may be said to be dishonourable. The law has not drawn anY distinction between these tYPes of acquittals " .

6.Hence, the instant writ petition is J allowed and respondents are directed to

forlhwith release the withheld pension of petitioners alongwith all the back benefits/annual increases etc.

Announced.

12.12.2018. -2ru tuilce /rr?7/4

{JDGE

Hon'ble Justice Lal Jan Khattak & Syed Muhamnad Attique Shah.