P L D 1989 Supreme, Court 6
[Shariat Appellate Bench]
present: Muhammad Afzal zullah, Chairman, Swim Swan Shah, Shafi‑ur Rehman. Pir Muhammad Karam Shah and Maulana Muhammad Taqi Usmani. JJ
PAKISTAN through SECRETARY, MINISTRY OF DEFENCE‑‑Appellant
THE GENERAL PUBLIC‑‑ Respondent
Shariat Appeal No.2 of 1984, decided on 18th September, 1988. (On appeal from the judgment dated 13‑10‑1983 of the Federal Shariat Court in S.S.M. 84,85,100 & 160/82)
(a)Constitution of Pakistan (1973)--
‑‑‑Art. 203‑‑Pakistan Army Act (XXXI of 1962). S.133‑ ‑Pakistan Navy Ordinance (XXXV of 1961). S.140‑‑Pakistan Air force Act (VI of 1953), S,162‑‑Repugnancy to Injunctions of Islam‑‑Bar of appeal against decisions of a Court‑martial‑ ‑Validity of‑‑Remedy of review provided to aggrieved person, not to be equated with remedy of appeal‑ ‑ Aggrieved person, in appeal has not only the right to challenge the order of which, he felt aggrieved but has also the right to appear before Appellate Court and to be heard in support of his, appeal‑Defence Forces Authorities having conferred right of appeal in Hudood cases, if discipline thereof, was not affected by conferment of that right In those cases, same would not be affected by conferment of right of appeal for conviction for other serious offences‑ ‑Provisions of S.133, Pakistan Army Act, S.162 of Pakistan Air Force Act and S.140 of the Pakistan Navy Ordinance, denying right of appeal to an aggrieved person were repugnant to injunctions of Islam‑‑ Necessary amendments were ordered to be carried out in these provisions as per direction of Court by the specified date.
Muhammad Riaz v. The Federal Government etc. PLD 1980 FSC I; Federation of Pakistan and others v. Public at Large P L D 1988 S C 202 and Federation of Pakistan v. The General Public Shariat Appeal No.17 of 1984 decided on 17‑1‑1988 ref.
(b) Islamic Jurisprudence‑‑
Administration of justice‑ ‑Barring the right of appeal is against injunctions of Islam,‑‑[ Appeal].
Riaz‑ul‑Ha‑san Gilani, Deputy Advocate‑General and Ch. Akhtar Ali, Advocate‑on‑ Record for Appellant Abdul Rakeem Khan, Advocate Supreme Court and Karam Elahi Bhatti, Advocate on‑ Record for Respondent. Maulana Latafatur Rehman : Juris Consult.
Date of hearing, l8th January, 1988.
NASIM HASAN SHAH, J ‑‑This appeal, is directed against the judgment dated 13‑10‑1983 passed by the Federal Shariat Court whereby some provisions of the Pakistan Army Act, 1952, Pakistan Air Force Act 1953 and Pakistan Navy Ordinance, 1961 have been found to be repugnant to the Injunctions of Islam and, therefore, needed to be amended.
'The relevant facts are that the Federal Shariat Court in exercise of its suo motu power to examine the existing laws with a view to ascertaining whether they were repugnant to, the Holy Quran and the Sunnah of the Holy Prophet examined the laws governing the Armed Forces and on doing so found certain provisions of these Laws to be repugnant to the Injunctions of Islam and needed amendment so as to make them conform with the Injunctions of Islam. Accordingly, the following amendments were directed to be made in the three Defence Service Laws:
"(a) Hudood Laws may be made applicable to the members belonging to these three Forces though the Legislature may vest Army Officers with the powers of Sessions Judge or Magistrate or provision may be made for trial of these offences, whether Hudood or Tazir, by the, Summary Military Court, Special Military Court or Court Martial as may be considered advisable, keeping in , view the nature of the sentence or any particular offence
(b) Appellate Courts be set up to hear appeals against the convictions under the ‑‑Hudood laws as well as against their convictions under these three laws though petty punishments may be made subject to‑revision only.
(c) Section 154 Army Act, section 190 AIR FORCE Act and I Section 165 Navy Ordinance be so amended as to make It incumbent to take a bond from the next of kin, undertaking to distribute the money taken, by, him from the assets of the deceased among all the Muslim heirs.
(d)In the Chapter relating to pardons., remission and suspension of sentence in each law it shall be clarified that the provisions of that Chapter shall not apply to eases in which Hadd sentence is awarded. They shall not also apply to the sentence of Qisas and Diyat If as a result of the Supreme Court judgment ,in matters of Diyat ,and Qisas, that, law is enforced.
(e) If as a result of the appeal Pending before the Shariat Appellate Bench of the Supreme Court against the judgment of‑ this Court in Muhammad Riaz v. The Federal Government etc., (PLD 1980 FSC 1), the law of Qisas and Diyat is made a part of the law of the land these three laws shall be so amended as to give effect to that law."
An appeal was‑ filed against the above judgment by Pakistan through the Secretary, Ministry of Defence and this appeal came up for hearing on 22‑5‑1985 ' On that date it was submitted by the
learned Deputy Attorney‑ General, appearing on behalf of the appellant that a major portion of the judgment had since been implemented. The appellant was, accordingly, ‑ directed to submit a statement specifying the extent to which, judgment of 'the Federal Shariat Court had been implemented and to what ' extent the present appeal was desired to be pressed. In this connection, the following statements were submitted on behalf of the three Armed Forces:‑
(a) Hudood laws have been made applicable to the members of the army by amending PAA (Pakistan Army Act) Section 59 and ,the sentences under the Islamic Laws have been, provided in PAA Section 60 which hereafter did not exist in the Act.
(b)Provision for the establishment of Court of ,Appeals has been made against the findings and sentence of Hadd under Islamic Laws vide PAA, Section 133‑A.
(c) Amendments in PAA, Sections, 143 and 144 'have also been made whereby it has been clarified t hat the sentence of Hadd cannot be pardoned, remitted, commuted or suspended.
The appeal was intended to be pressed on the following points:‑
(a) Setting of Appeal Courts to hear appeals against the conviction other than for the offence carrying Hadd sentence under the Pakistan Army Act.
b. Amending Pakistan Army Act Section 154 to make it incumbent to take a bond, from the next of kin, thereby giving an undertaking to distribute Rs.1,000 taken by him from the assets of the deceased amongst all the Muslim heirs.
Decision of Federal Action of
(a) Incorporation of Hudood Law.
Relevant Sections of
PN Ordinance, 1961,i e.
Sections 78, 79, 80
amended and new Sections 131‑A and 138‑A added.
(b) Right of appeal.
Needful done by adding
© Bond for next of kin
Not done as appeal has been lodged with Supreme Court.
(d) Pardon and Remission
in Hadd cases:
Needful done by suitably
Amending Section 153.
(e) Diyat and Qisas: Pended by the Federal
Shariat Court itself.
PAKISTAN AIR FORCE
Position taken on behalf of the Pakistan Army was reiterated and Section 162‑A added providing for appeals in cases of Hadd.
During the course of the hearing before us, the learned representatives of the Pakistan Army, Navy and Air Force did not seriously contest the amendments suggested in section 154 of the Army Act, 1952, Section 190 of the Air Force Act, 1953 arid section 165 of the Navy Ordinance, 1961 by the Federal Shariat Court for distributing the money taken by them from the assets of the deceased among all the Muslim heirs. Their objection merely was that difficulties would arise in implementing the directions of the Federal Shariat Court. The present provision was mostly for administrative convenience because the payment of money upto Rs.1,000 or the delivery of the property of the value thereof to the widow or the next‑of‑kin without production of probate etc. was meant to pay off regimental debts of the deceased and to meet the immediate expenditures on funeral etc, it was submitted that taking a bond from the next‑of‑kin, widow or the representative of the deceased, when the dead body is yet to be 'disposed of, particularly in field area i.e. in war conditions would defeat the very purpose for which this provision existed in the Defence service Law.
We do not think that the inconvenience pointed out is of an insuperable nature. This situation can be‑ taken care of by adding a Proviso to the amended section, whereby eases of such necessity could be catered for.
Thus, the only point of controversy which subsists is whether the absence of a Court of appeal to hear appeals against the conviction by the Court Martials is repugnant to the injunctions of Islam.
According to section 133 of the Pakistan Army Act, 1952, appeals against the decisions of the Court Martial are barred. This section reads as follows:‑
133. Bar of Appeals.‑‑No remedy shall lie against any decision of a Court‑_Martial save as provided in this Act, and for the removal of doubt it is ‑hereby declared that no appeal or application shall lie in respect of any proceeding or decision of a Court‑Martial to any Court exercising any jurisdiction whatever. “
Similar is the position in the Pakistan Air Force Act, 1953. Herein Section 162 lays down:‑‑
“162. Bar of Appeals.‑‑No Court shall question the correctness, legality or propriety or any proceeding or decision of any Court‑Martial, and no remedy shall like in respect of any such proceeding or decision save as provided in this Act."
Again, Section 140 of Pakistan Navy Ordinance, 1961, bars appeals to question decisions of the Naval Tribunal. This Section reads as follows:‑
140. Bar of Appeals.‑‑No Court shall question the correctness, legality or propriety of any proceedings, order, finding or sentence of any naval tribunal, and no appeal, revision or other remedy shall lie in respect of any such proceeding, order, finding or sentence save in accordance with the provisions of this Ordinance."
No doubt, in the Laws governing all the three Defence Services, a remedy is provided to the aggrieved persons who are convicted by a Court‑Martial namely they may present a petition against the order to the Central Government or the. Head of the armed force concerned', and these authorities may thereupon review the finding or the sentence or the both. But this remedy cannot be equated with the remedy of appeal. Herein, the aggrieved party has not only the right to present a petition to challenge the order of which he is aggrieved but has also the right to appear before the Appellate Court and to be heard, in support of his appeal.
The main objections against the conferment of the right of appeal to members of the Defence Service are, in the main, two‑‑
(a) that an appeal against conviction other than a conviction under the Hudood Ordinance will effect discipline of the armed forces personnel; and
(b) that section 133 of the Pakistan Army Act, section 162 of the Pakistan Air Force Act and section 140 of Pakistan Naval Ordinance are a bar to appeals and these sections are not repugnant to any Injunction of Islam.
So far as the plea of effecting the discipline of the armed forces personnel by conferment of the right of appeal is concerned, this plea seems to contradict the action taken by the Defence Force B Authorities, as they have willingly conferred the right of appeal in Hudood cases. If discipline of the armed forces will not be effected by conferment of the right of appeal in Hudood cases we do not see why it should be effected by conferment of the same right for conviction, for other serious offences?
Moreover, the Defence Service Laws, namely, the Pakistan Army Act, Pakistan Air Force Act and the Pakistan Navy Ordinance are all based on Acts which were enacted by the U . K. Parliament for its own Army, Air Force and Navy. However, after the Second World War, Courts of Appeal have been established in the United Kingdom. whereby the right of appeal has been granted to Members of the Defence Forces convicted by the Court‑martial [see Court‑martial (Appeals) Act, 1951. This has been further amended by the Court‑martial (Appeals) Act, 1968 which provides for an appeal from the Court‑martial Appeals Courts to the House of Lords].
Similarly, in the United States of America, the Courts of Military Review and Courts of Military Appeals have been set up. Section 2631 of the American Jurisprudence (2nd Edition) may be reproduced here as it explains the raison d’etre for establishing the Courts of Military Appeals and provides some details for its composition and functions: ‑
“263. Court of Military Appeals..‑‑ When after the Second World War, Congress became convinced of the need to assure direct civilian review over military justice, it deliberately chose to confide this power to a specialized Court of Military Appeals so that disinterested civilian judges could gain a fully developed understanding of the distinctive problems and legal traditions of the Armed Forces. Thus with the enactment of the Uniform Code of Military Justice in 1950, Congress established a Court of Military Appeals, which is located for administrative purpose, in the Department of Defence. The Court consists of three judges appointed from civil life by the President, by and with the advice and consent of the Senate, for a term of 15 years. Not more than two of the judges may be appointed from the same political party and each judge must be a member of the bar of a Federal Court or the highest Court of a State. Each Judge is entitled to the same salary and travel allowance .5 as provided for judges of the United States Court of Appeals and is eligible for re‑appointment. The judges may be removed by the President for neglect of duty or malfeasance in office, or for mental or physical disability, and for no other cause. The proceedings of the United States Court of Military Appeals are published in the United States Court of Military Appeals Re ports.
The Court of Military Appeals reviews the record in all cases in which the sentence affects a general or flag officer or extends to death; all cases reviewed by a Court of military review which the Judge Advocate‑General orders are sent to the Court of Military Appeals for review; and all cases reviewed by a Court of military review in which, upon petition of the accused and on good cause shown, the Court of Military Appeals has granted a review. An appeal by the accused must be taken within 30 days from the time he is notified of the decision of a Court of Military review, and the Court of Military Appeals must act upon a petition for appeal within 30 days of the receipt thereof. The Court of Military Appeals can take action only with respect to matters of law."
We, therefore, agree with the view of the Federal Shariat Court that if there had been any danger of indiscipline in the Army by the setting up of appellate Courts, the laws passed in these countries for establishing such appellate , Courts providing for appeals against the decisions of Court‑martial would not have been enacted in the United Kingdom and the United States of America. In fact, these two countries have gone to the extent of appointing civilian Judges for hearing appeals against the orders of Courts Martial. But we would not express any opinion on that point and consider that! even if the Courts of Appeal provided for hearing appeals against' the decisions of the Court‑martial, who are sentenced to Hadd under the Islamic Law, are empowered to hear appeals against the convictions for other serious offences, the defect would stand removed.
As far as the question that the provisions barring the right of appeal in the Defence Service Laws are not repugnant to the b Injunctions of Islam is concerned, we cannot agree, This Court has held that the Islamic Injunctions of Adal, Qist and Ehsan warrant that an aggrieved party should be entitled to test the correctness of a decision which results in deprivation of his livelihood. See Federation of Pakistan and others v. Public at Large (P L D 1988 S C 202) wherein the validity of certain provisions of the West Pakistan Press and Publications Ordinance (XXX of 1963) including the provisions therein which did not permit an aggrieved party the right of appeal was considered and it was held that the said provisions were against the injunctions of Islam and must be amended and the right of appeal provided. The need for testing the correctness of a decision which results in deprivation of liberty and also livelihood would obviously be greater. This Court's decision in Federation of Pakistan and others v. Public at Large (P L D 1988 S C 202) has been re‑affirmed in Federation of Pakistan v. The General Public (Shariat Appeal No.17 of 1984 decided on 17‑1‑1988) and it was observed:‑‑
"Ana indeed the harshness in similar provisions of west Pakistan press and Publications Ordinance XXX of 1963, was removed by the Court in the same judgment. Remedial measures were ordered."
The Federal Shariat Court in its impugned judgment has also held that the right of appeal was recognized by the Holy Prophet (Peace be upon him) as well as by the Khulafa‑e‑Rashideen and discussed this question in great detail. Nothing has been shown to us in refutation thereof. The plea, thus, that barring the right of, appeal does not offend against the injunctions of Islam, cannot, be accepted.
In the result, the provisions of Section 133 of Pakistan Army! Act, Section 162 of Pakistan Air Force Act and Section 196 of Pakistan, Navy Ordinance must be held as repugnant to the Injunctions of Islam and, therefore, void. The appellant is, accordingly, 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 as discussed above. The necessary amendments shall be carried out by 1st January, 1989 in Sections 133‑A of Pakistan Army Act 1952; Section 162‑A of Pakistan Air Force Act, 1953 and Section 138‑A of Pakistan Naval Ordinance 1961 in the terms indicated above The appeal is disposed of in the above terms, leaving parties to bear their own costs.
A.A./P-64/S Order accordingly.