IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE AMIR HANI MUSLIM 
MR. JUSTICE IJAZ AHMED CHAUDHRY 
 
CIVIL APPEAL NOs. 718 & 1366 OF 2007 
(On appeal against the judgments dated 24.6.2005 & 
19.4.2006 
passed 
by 
the 
Lahore 
High 
Court, 
Rawalpindi Bench in Writ Petition No. 1762/2005 & 
919/2006) 
 
Ex.-Gunner Muhammad Mushtaq 
 
 
(In CA 718/2007) 
 
Ex-Lance Naik Mukarram Hussain  
 
(In CA 1366/2007) 
… Appellants 
VERSUS 
Secretary Ministry of Defence through  
Chief of Army Staff and others  
 
 
(In both cases) 
… Respondents 
 
For the Appellants: 
Col (R) Muhammad Akram, ASC 
 
 
 
 
Ch. Akhtar Ali, AOR 
 
 
 
 
(In CA 718/2007) 
 
 
 
 
 
Rao Naeem Hashim Khan, ASC 
 
 
 
 
(In CA 1366/2007) 
 
For the State: 
 
Mr. Sohail Mehmood, DAG 
 
 
 
 
Date of Hearing:  
01.04.2015 
 
JUDGMENT 
 
 
 
IJAZ AHMED CHAUDHRY, J.- Through these appeals 
by leave of the Court, the appellants / ex Army Officials have 
challenged the judgments of the Lahore High Court, Rawalpindi 
Bench whereby the Writ Petitions filed by them against their death 
sentences awarded by the Field General Court Marshal were 
dismissed and the orders of the said Field General Court Marshal 
were affirmed.  
2. 
 
Facts briefly stated are that appellant Muhammad 
Mushtaq in Civil Appeal No. 718/2007 was Gunner of Pakistan 
Army and was posted at Siachin Glacier in Chullung Sub Sector. He 
was charged under Section 59 of the Pakistan Army Act, 1952, to 
have committed murder of another Gunner Israr Ahmed on 
CIVIL APPEAL NOs. 718 & 1366 OF 2007 
2 
28.2.2004 at 5.30 AM. On 5.7.2004 he was convicted and sentenced 
to death by the Field General Court Martial. The sentence of death 
was confirmed on 26.10.2004 by the Chief of Army Staff. The 
appellant then filed Writ Petition No. 1762/2005 before the learned 
Lahore High Court, Rawalpindi Bench which stood dismissed vide 
order dated 24.6.2005. The appellant challenged the said order of 
the learned High Court by filing Civil Petition No. 2149/2005 before 
this Court in which leave was granted on 6.2.2007 and out of which 
this appeal has arisen.  
3. 
 
Appellant Mukarram Hussain in Civil Appeal No. 
1366/2007 was working as Lance Naik in Pakistan Army and was 
posted at Chumb Sector, Azad Kashmir. He was charged for the 
double murder of Hawaldar Noor Muhammad and Lance Hawaldar 
Bashir Ahmed vide FIR No. 39/2001 dated 29.5.2001 under Section 
302 PPC at Police Station Barnala, District Bhambar Azad Kashmir. 
As the place of occurrence fell within the Cantonment Area, the 
investigation was undertaken by Military Police. He was convicted 
and sentenced to death by the Field General Court Martial and 
appeal against the said conviction also failed. The appellant then 
filed Writ Petition No. 919/2006 before the learned Lahore High 
Court, Rawalpindi Bench which stood dismissed on 19.4.2006. 
Thereafter the appellant challenged the said order of learned High 
Court before this Court by filing Civil Petition No. 336/2006 out of 
which Civil Appeal No. 1366/2007 has arisen.  
4. 
 
Learned counsel for the appellant in Civil Appeal No. 
718/2007 has inter alia contended that the appellant was not given 
the opportunity to consult a legal practitioner as guaranteed by the 
Constitution in terms of Article 10(1) of the Constitution; that the 
appellant has been deprived of his rights; that the appellant was 
CIVIL APPEAL NOs. 718 & 1366 OF 2007 
3 
forced to take a different stance as it was the case of the appellant 
that the deceased had tried to commit an unnatural act with him 
and due to sudden provocation he committed his murder. Learned 
counsel lastly contended that the learned High Court and this Court 
are empowered to set aside the conviction and sentences awarded to 
the appellant by the Field General Court Martial. In support of the 
contention learned counsel relied on Ghulam Abbas Niazi vs. 
Federation of Pakistan (PLD 2009 SC 866), & Shabbir Shah Vs. 
Federation of Pakistan (PLD 1994 SC 738 at 765).  
5. 
 
Learned counsel for the appellant in Civil Appeal No. 
1366/2007 submitted that it was an un-witnessed occurrence; that 
the learned High Court dismissed the writ petition filed by the 
appellant without considering the powers vested in it; that FIR was 
registered with a delay of 31 hours and that the case was registered 
at the ordinary Police Station and the same was to be tried by the 
ordinary Courts.    
6. 
 
Learned Deputy Attorney General, on the other hand, 
has submitted that writ petitions were not maintainable in view 
Article 199(3) of the Constitution; that Field General Court Martial 
was competent under the Army Act to try the appellants and the 
proceedings were not mala fide; that under Section 133 of the 
Pakistan Army Act the matter has come to an end after rejection of 
appeals of the appellants by the Court of Appeal. In support of the 
contention, learned counsel relied on Rana Muhammad Naveed Vs. 
Federation of Pakistan (2013 SCMR 596).  
7. 
 
We have heard learned counsel for the appellants as 
also learned Deputy Attorney General at some length and have gone 
through the record.  
CIVIL APPEAL NOs. 718 & 1366 OF 2007 
4 
8. 
 
Admittedly both the appellants were serving in Pakistan 
Army at the time of commission of offence. A complete procedure 
has been provided in the Pakistan Army Act, 1952, to try such 
accused. Both the appellants exhausted the remedies available to 
them under the Pakistan Army Act up to the level of Chief of Army 
Staff and it was after that, that they invoked the Constitutional 
jurisdiction of the learned High Court by filing writ petitions. Article 
199 (3) of the Constitution of Islamic Republic of Pakistan clearly 
prohibits the High Courts from making an order in relation to 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 such forces, 
or in respect of any action taken in relation to such person as a 
member of the Armed Forces, or a person subject to such law. 
Under this clause of Article 199 the jurisdiction of the High Court is 
barred with regard to the conviction recorded and sentences 
awarded by the Field General Court Martial. As the appellants were 
admittedly members of Armed Forces, therefore, writ could not have 
been issued by the High Court against the General Field Court 
Martial or against the Appellate Authority which confirmed the 
conviction and sentences in view of Article 199(5) of the Constitution 
as the General Field Court Martial is excluded from the definition of 
‘person’ in Article 199(1)(i) of the Constitution. The learned High 
Court in the peculiar facts and circumstances of this case has 
rightly declined to press into service its Constitutional jurisdiction 
in respect of the appellants, who have been found guilty by the 
competent forum. This Court in Shahida Zahir Abbas Vs. President 
of Pakistan (1996 PLD 632) has observed that “rules of procedure 
applicable for trial of a person in a criminal case before a Military 
Court do not violate any accepted judicial principle governing trial of 
CIVIL APPEAL NOs. 718 & 1366 OF 2007 
5 
an accused person. Procedure prescribed for trial before Military 
Courts is in no way contrary to the concept of a fair trial in a criminal 
case.” In Anwar Aziz Vs. Federation of Pakistan (2001 PLD 549) this 
Court has held that where matter is related to terms and conditions 
of service or in respect of any action taken in relation to members of 
Armed Forces or a person subject to Pakistan Army Act, 1952, then 
jurisdiction of a High Court in such a case is barred by Article 
199(3) of the Constitution and that Article 8(3) of the Constitution 
envisages that provisions of Article 199(3) of the Constitution shall 
not apply to any law relating to members of Armed Forces, or of the 
Police or of such other forces as are charged with maintenance of 
public order, with a view to keep maintenance of discipline among 
them and also for the purpose of ensuring proper discharge of their 
duties. In Muhammad Musthaq Vs. Federation of Pakistan (1994 
SCMR 2286) this Court has candidly held that grant of relief in 
relation to a person who is member of the Armed Forces of Pakistan 
even though based on fundamental rights which are included in 
Clause 1 of Article 199, is barred under Article 199(3) of the 
Constitution as the High Court has no jurisdiction in the matter. 
The learned Lahore High Court in Captain (R) Waseem Pasha 
Tajammal Vs. Federal Government, Ministry of Defence through 
Chief of Army Staff has also held that Article 199(3) of the 
Constitution has imposed restriction on the High Court that no 
order could be made under Article 199(1) on an application made by 
or in relation to a person who is member of the Armed Forces of 
Pakistan. Same is the case in Ex.PA 33756 Lieut Muhammad Asjid 
Iqbal Vs. Federal Government Secretary General Ministry of 
Defence, Rawalpindi (2005 PCrLJ 632).   
CIVIL APPEAL NOs. 718 & 1366 OF 2007 
6 
9. 
 
However, it is also a settled law that the superior Courts 
can interfere in the orders of the authorities relating to the Armed 
Forces if the same are found to be either result of mala fide or the 
same are corum non judice. This Court in Ghulam Abbas Vs. 
Federation of Pakistan through Secretary Ministry of Defence (2014 
SCMR 849) has held that “any action or order of any authority 
relating to Armed Forces of Pakistan, which is either corum non 
judice, mala fide or without jurisdiction, the same could be challenged 
before the High Court and bar contained under Article 199(3) of the 
Constitution would cease to operate.” The same view has been taken 
in Rana Muhammad Naveed Vs. Federation of Pakistan through 
Secretary M/o Defence (2013 SCMR 596) that the High Court is not 
prohibited from making an order under Article 199(3) of the 
Constitution when acts, actions or proceedings suffered from defect 
of jurisdiction and are thus coram non judice. In Federal 
Government through M/o Defence, Rawalpindi Vs. Munir Ahmed 
Gill (2014 SCMR 1530) this Court has reiterated that “when any 
action of the Army Authorities regarding a serving officer of the Armed 
Forces or any other person subject to the Pakistan Army Act, 1952, is 
established to be either mala fide, quorum non judice or without 
jurisdiction then the same could be assailed through a Constitution 
petition by the aggrieved person, and the bar of jurisdiction under 
Article 199(3) of the Constitution would have no applicability.” Same 
was the view of this Court in Federation of Pakistan through 
Secretary Defence Vs. Abdul Basit (2012 SCMR 1229). However, we 
have not been able to find out any mala fide on the part of the 
prosecution or authority. Neither the order passed by the Field 
General Court Martial is a case of no evidence nor the evidence led 
by the prosecution is insufficient. There is sufficient material 
CIVIL APPEAL NOs. 718 & 1366 OF 2007 
7 
available to prove the guilt of the appellants. In absence of any mala 
fide on the part of the prosecution, the conviction and sentences 
awarded to the appellants by the Field General Court Martial cannot 
be stamped to be coram non judice. The case law relied upon by the 
learned counsel for the appellants is also to this effect that if an 
order of the authority relating to Armed Forces is found to be result 
of mala fide or the same is coram non judice, the Courts can 
interfere. However, as discussed above, the same is misconceived.   
10. 
 
So far as the argument of learned counsel for the 
appellants that the appellant in Civil Appeal No. 718/2007 that the 
appellant was not given an opportunity to consult legal practitioner 
of his own choice in terms of Article 10(1) of the Constitution is 
concerned, it is on record that the appellant was defended by a 
Defending Officer and in the writ petition before the High Court in 
para 5 it has been specifically mentioned that the appellant could 
not afford engaging a counsel due to his sheer poverty. In such a 
situation the apprehension of the learned counsel is misconceived. 
In Civil Appeal No. 1366/2007 it is on record that the appellant was 
represented through a counsel.  
11. 
 
For what has been discussed above, we do not find any 
merit in these appeals, which are dismissed.  
 
JUDGE 
 
JUDGE 
Islamabad, the  
1st of April, 2015 
Approved For Reporting  
Khurram