IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED

Civil Petition No.1125 of 2018

(Against the judgment dated 26.01.2018 passed by the Lahore
High Court Rawalpindi Bench Rawalpindi in W.P. No.2271/2012)

Ex- PA 43620 Lt. Asim Bashir

…Petitioner(s)
Versus

Federation of Pakistan & 3 others

…Respondent(s)

For the Petitioner(s): Mr. S.A. Mahmood Khan Saddozai,

ASC
Ms. Rubina Mahmood Khan
Saddozai, ASC
Ch. Akhtar Ali, AOR
For the Respondent(s): Mr. Sajid Ilyas Bhatti,
Addl. Attorney General for Pakistan
Major Haider and Major Azmat, JAG
Branch.

Date of hearing: 06.05.2021

ORDER

Qazi Muhammad Amin Ahmed, J.- Gasping for life

with a fire shot in the head, Naveeda Gohar, 24/25, was escorted
by Asim Bashir, her second cousin, a lieutenant in the Pakistan
Army, petitioner herein, to Combined Military Hospital on
4.2.2010; incident was reported to the police by her husband
Major Syed Afaq Ahmed (PW-8) wherein he alongside the petitioner
named his mother as suspects; the injured breathed her last on
23.2.2010. D.N.A. (deoxyribonucleic) profile generated through
deceased’s vaginal swabs were found compatible with petitioner’s
specimens to conclusively confirm the carnal liaison.
Refusal of proposal by the petitioner, prior to deceased’s
marriage with the complainant, was cited as motive for the crime;
he was taken into custody by the Army authorities same day.
Presented before a Field General Court Martial convened at
Bahawalpur Cantonment, the petitioner was indicted for homicide
and fornication, initially let off on the former charge, however,
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returned a guilty verdict on the latter with a sentence of rigorous

imprisonment for 3-years 6-months as well as payment of
Rs.10,000/- as fine, accompanied by concomitant dismissal from
the service vide decision dated 14.06.2011, a finding reverted for
reconsideration by the Convening Authority/General Officer
Commanding vide order dated 13.08.2011, in consequence
whereof, after revisiting the evidence, comprising ocular account,
admission and forensic report, he was convicted for homicide as
well and sentenced to imprisonment for life vide decision dated
01.09.2011, affirmed by the General Officer Commanding as well
as the Chief of Army Staff; his appeal, filed under section 133B of
the Pakistan Army Act, 1952 (the Act) was dismissed on
10.2.2012; a Constitution petition also failed before a learned
Judge-in-Chamber of the Lahore High Court at Rawalpindi Bench
on 19.10.2017, leave to appeal wherefrom is being prayed for.
Petitioner’s mother was prosecuted for abetting the crime in
regular jurisdiction before a learned Additional Sessions Judge
Rawalpindi; she was acquitted without challenge vide judgment
dated 9.5.2012.
2. Learned counsel for the petitioner contends that the
petitioner, notwithstanding the accusation was not subject to the
provisions of the Act in view of Section 59(2) thereof; that Field
General Court Martial was not convened at the proper venue as
contemplated by section 93 of the Act ibid as the petitioner had
since been transferred to another station and, thus, the entire
exercise was a nullity in the eye of law; that the offence was of a
civil nature, a position confirmed by separate trial of petitioner’s
mother, namely, Nigar in regular jurisdiction; that a Convening
Officer could not have remitted the case for reconsideration of the
evidence and, thus, the entire exercise suffered from the taints of
mala fide and being coram non judice was liable to be set aside,
concluded the learned counsel. The learned Additional Attorney
General by referring to various provisions of the Army Act argued
that the petitioner was convicted and sentenced on the strength of
admissible evidence in compliance with the procedure permissible
by law and, thus, there was no occasion calling for interference
with a conclusion drawn by the High Court.
3. Heard. Record perused.
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4. On the eventful day, the petitioner was serving as a

lieutenant in the Pakistan Army; though the incident occurred in a
civilian neighbourhood, he was apprehended by the Military Police
on the fateful day and a case for murderous assault was registered
on the basis of information laid by victim’s husband, himself a
serving Major in the Pakistan Army; the petitioner conspicuously
figured as the prime suspect therein. Given his status as an Army
Officer, his apprehension, custody and prosecution before a Field
General Court Martial are the steps taken within the remit of
Section 549 of the Code of Criminal Procedure, 1898 (the Code)
which unambiguously authorizes such a prosecution on the option
of Commanding Officer, a choice that is in line with the concurrent
jurisdiction of Court Martial and Criminal Courts on the discretion
of “Prescribed Officer” as contemplated by sections 94 and 95 of the
Act ibid, laying down the procedure in such an eventuality,
therefore, the argument that the petitioner was not liable to be
treated as subject to the Act in view of the nature and venue of the
crime is entirely beside the mark. We are also not impressed by the
contention that the petitioner ought not to have been tried in
Bahawalpur Cantonment and that proceedings of Field General
Court Martial stood vitiated on this score alone. On the contrary,
in view of the options available to the Army authorities under
section 93 of the Act ibid to convene Field General Court Martial
“in any place”, we are not inclined to take exception to the
convenience of choice exercised by the authorities. The learned
counsel has not been able to point out any prejudice suffered by
the petitioner by his trial at Bahawalpur where, according to the
record, he was afforded sufficient and fullest opportunity to meet
the witnesses half way without let or hindrance.
Statutory scheme, regulating proceedings of Court Martial
does not attach finality with any finding or sentence recorded
thereunder unless confirmed within the contemplation of section
119 of the Act ibid by the competent authority; a combined reading
of various provisions relating thereto under Chapter X of the Act
ibid validly space the possibility of revision of a finding by the
officer higher in hierarchy. In the present case, General Officer
Commanding while taking stock of the evidence directed
reassessment thereof by the president and members of Field
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Civil Petition No. 1125 of 2018

General Court Martial, an exercise envisaged by the Act,

undertaken in continuation of an ongoing process. The final
sentence/finding is cumulative impact leading to the logical end of
the proceedings within the integrity of the procedure regulating
trial under the Act. Acquittal of petitioner’s mother tried for
abetment of the crime by a learned Additional Sessions Judge in
regular jurisdiction does not adversely affect petitioner’s
prosecution, assigned a vastly distinguishable role of fatal shot to
the deceased as unanimously alleged by the witnesses in the
suggested backdrop, forensically confirmed.
5. The parameters authoritatively settled by this Court to
examine the vires of a finding/sentence recorded by a Court
Martial provide a limited space to examine hypothesis of any mala
fide lurking behind the prosecution or any juridical flaw in holding
of the Court Martial that may be viewed as coram non judice or
without jurisdiction and in so doing a High Court shall not attempt
to search for a contra view of evidence, competently recorded
during a Court Martial. See Ex-Capt. Muhammad Akram Khan Vs.
Islamic Republic of Pakistan through the Secretary to the
Government of Pakistan, Ministry of Law and Parliamentary Affairs,
Islamabad and another (PLD 1969 SC 174), The State Vs. Zia-ur-
Rehman and others (PLD 1973 SC 49), Brig. (Rtd.) F.B. Ali and
another Vs. The State (PLD 1975 S.C. 506), Sh. Karamat Ali Vs. The
State (PLD 1976 SC 476), Federation of Pakistan Vs. Malik Ghulam
Mustafa Khar (PLD 1989 S.C. 26), Secretary Ministry of Religious
Affairs and Minorities and others Vs. Syed Abdul Majid (1993 SCMR
1171), Mrs. Naheeed Maqsood Vs. Federation of Pakistan through
Secretary, Ministry of Interior, Govt. of Pakistan Islamabad and 4
others (1999 SCMR 2078), Ex-Lt. Col. Anwar Aziz Vs. Federation of
Pakistan through Ministry of Defence Rawalpindi and others
(PLD 2001 SC 549), Mst. Tahira Almas and another Vs. Islamic
Republic of Pakistan through Secretary, Ministry of Interior,
Islamabad and another (PLD 2002 SC 830), Mushtaq Ahmed and
others Vs. Secretary Ministry of Defence through Chief of Air and
Army Staff and others (PLD 2007 S.C. 405), Federation of Pakistan
and others Vs. Raja Muhammad Ishaque Qamar and another (PLD
2007 S.C. 498), Ghulam Abbas Niazi Vs. Federation of Pakistan and
others (PLD 2009 S.C. 866), Federation of Pakistan through
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Civil Petition No. 1125 of 2018

Secretary Defence and others Vs. Abdul Basit (2012 SCMR 1229),
Rana Muhammad Naveed and another Vs. Federation of Pakistan
through Secretary M/o Defence ( 2013 SCMR 596), Ghulam Abbas
Vs. Federation of Pakistan through Secretary, Ministry of Defence
and others (2014 SCMR 849), District Bar Association Rawalpindi
and others Vs. Federation of Pakistan and others (PLD 2015 S.C
401), Ex-Lance Naik Mukarram Hussain and others Vs. Federal
Government , M/o Defence through Chief of the Army Staff and
others (2017 SCMR 580), Ex-Gunner Muhammad Mushtaq and
another Vs. Secretary Ministry of Defence through Chief of Army
Staff and others ( 2015 SCMR 1071) and Said Zaman Khan and
others Vs. Federation of Pakistan (2017 SCMR 1249).
Official acts, protected by statutory presumption, of being
intra vires cannot be readily branded as being actuated by
considerations, tainted with mala fide, as exercise of jurisdiction by
the functionaries of the Republic, vested in them by law, to
accomplish a statutory purpose; these deserve full faith and credit.
Contra allegations must qualify falsification test on the strength of
material capable of objective verification; a bald accusation merits
no consideration. The officers who carried out the exercise do not
appear to have an axe to grind and conclusions drawn by them are
irresistibly based upon the preponderance of evidence; they by
virtue of their ranks validly constituted the Field General Court
Martial as well as positions superior thereto and, thus, allegation
of coram non judice is nothing than a far cry in circumstances.
View taken by the learned Judge-in-Chamber being in accord with
the law declared by this Court in the supra cases, calls for no
interference. Petition fails. Leave declined.

Judge

Judge

Judge
Islamabad
6th May, 2021
Not approved for Reporting
Azmat/*