Adverting to the ouster clause contained in Article 199(3) of
“Constitution” it is observed that the said clause prohibits the Court
for making an order on application made by a person, who is
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, in 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. In view of clause (5) of the same Article, a "tribunal
established under a law relating to the Armed Forces of Pakistan" is
not included in the term "person" to whom a direction can be issued
under the Article. Subsection (4) of section 59 of “Act, 1952”, makes
it clear that jurisdiction of this Court under Article 199 of
“Constitution” is only barred in respect of a person mentioned as
above. A civilian, who is otherwise not subject to the Pakistan Army
Act, can become so subject, if he is "accused" of an offence under
clause (d) of subsection (1) of section 2 of the Pakistan Army Act.
Even otherwise it is by now well settled principles of law that
whenever order/action impugned is without jurisdiction, malafide or
coram non judice, bar under Article 199(3) of “Constitution” would
not be attracted. The impugned action of the Army Authorities of
taking into custody Mr. Inam-ul-Rahiem, Advocate is not only
without lawful jurisdiction but is clearly tainted with malafide as
spelled out from the facts of the instant case mentioned in preceding
paragraph No.2 as they have made all endeavor to withhold the
factum of detention from the Court. Guidance in this respect can be
sought from “FEDERAL GOVERNMENT M/o DEFENCE, RAWALPINDI
versus Lt. Col. MUNIR AHMED GILL” (2014 SCMR 1530) and Civil Appeal
No.1038 of 2006 “GHULAM ABBAS NIAZI versus FEDERATION OF
PAKISTAN and others” (PLD 2009 Supreme Court 866).
Lahore High Court
Writ Petition-Criminal proceedings-Detention/habeas
3739-19
2020 LHC 1
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