IN THE SUPREME COURT OF PAKISTAN 
(Review Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Amir Hani Muslim 
 
 
Mr. Justice Mushir Alam 
Mr. Justice Mazhar Alam Khan Miankhel 
 
 
C.R.Ps. 87 & 125/2015 in C.As. No.1366 & 718/07 and CMA No.7144/2015 
(For review of the judgment dated 1.04.2015 passed by this Court in C.As. No.718 & 1366/07) 
 
Ex-Lance Naik Mukarram Hussain 
 
(in CRP 87/15) 
 
Ex-Gunner Muhammad Mushtaq  
 
(in CRP 125/15) 
Petitioners 
 
 
Versus 
 
 
Federal Government, M/o Defence  
through Chief of Army Staff etc.  
 
(in CRP 87/15) 
 
 
 
Secretary, M/o Defence  
through Chief of the Army Staff  
 
(in CRP 125/15) 
Respondents 
 
AND 
C.M.A. No.6887/2015 in CRP No.452/2015 in C.P. No.276/2015 
 
Ex-Hawaldar Iftikhar Hussain  
 
 
 
 
Applicant 
 
 
Versus 
 
 
Federation of Pakistan through  
Secretary, M/o Defence Rawalpindi Cantt. 
 
 
Respondent 
 
For the Applicant/Petitioner: 
(in CMA 6887/15 & CRP 125/15):   
Col. (R) Muhammad Akram, ASC 
 
 
 
 
 
Ch. Akhar Ali, AOR 
 
(in CRP 87/15):  
 
 
Nemo 
 
For the Respondents: 
 
Mr. Sajid Ilyas Bhatti, DAG 
 
 
 
 
 
Major Asad, JAG, G.H.Q. 
 
Date of Hearing: 
 
 
23.01.2017 
 
JUDGMENT 
 
 
Mazhar Alam Khan Miankhel, J.- The listed are two Civil Review 
Petitions i.e. C.R.Ps. No.87 & 125/2015 through which the petitioners seek 
review of the judgment of this Court dated 1.04.2015 and one Civil 
C.R.Ps.87 & 125/15 etc. 
2 
Miscellaneous Application i.e. C.M.A. No.6887/2015 in C.R.P. No.452/2015 
through which the applicant seeks permission to file additional documents 
pertaining to compromise with the legal heirs of the deceased. Though the 
main review petition of the applicant, above referred, was dismissed vide 
order dated 5.10.2.015 but in his CMA following order was passed which for 
ready reference is reproduced below:- 
 
“ The learned ASC contends that in identical circumstances, 
request for compromise between the petitioner and the legal 
heirs of the deceased has been entertained by the Court in Civil 
Review Petition No.125 of 2015 (RE Ex-gunner Muhammad 
Mushtaq v. Secretary Ministry of Defence) in terms of order dated 
07.09.2015. Notice of this application be issued to the Attorney 
General for Pakistan as regards the maintainability of such 
application.” 
 
Since similar questions of law and facts are involved, therefore, all the listed 
matters will have their fate through this single judgment.  
2. 
The petitioners in both the review petitions as well as the applicant in 
CMA were tried, convicted and sentenced to death by the Field General 
Court Martial under the Pakistan Army Act, 1952 (in short the ‘Army Act’). 
After exhausting remedies available under the Army Act, they questioned 
their convictions before the Lahore High Court, Rawalpindi Bench which 
were dismissed for want of jurisdiction under Article 199(3) of the 
Constitution. All the three convicts filed their petitions for leave to appeal 
before this Court. After grant of leave in Civil Petitions No.2149/05 and 
336/06, filed by the petitioners, they filed Civil Appeals No.718 & 1366/2007 
which were dismissed through a consolidated judgment dated 1.04.2015. 
Now they have filed the listed civil review petitions whereas the review 
petition of the applicant was dismissed vide order dated 5.10.2015 but 
through the same order notice was issued in his CMA No.6887/2015 to the 
Attorney General for Pakistan with regard to its maintainability.   
C.R.Ps.87 & 125/15 etc. 
3 
3. 
Learned counsel for the applicant/petitioner submitted that in view of 
the compromise between the legal heirs of the deceased and the petitioner, 
the applicant/petitioner may be acquitted by accepting the said compromise. 
The main stance of the learned counsel was that in view of Section 1(2) 
Cr.P.C. provisions of Cr.P.C. are applicable to the case in hand, hence 
compromise under Section 345(2) Cr.P.C. can be accepted. 
4. 
 As against that the learned DAG while supporting the impugned 
judgment and giving strength to his arguments referred to Section 143 of the 
Army Act which provides pardons, remissions and suspension by the 
Federal Government or the Chief of Army Staff or any officer not below the 
rank of Brigadier empowered in this behalf by the Chief of Army Staff and as 
per the learned DAG, this Court cannot assume the jurisdiction in the matter 
in hand. Learned DAG in support of his arguments placed reliance on the 
cases of Javed Iqbal Vs. The S.H.O. and others (2013 P Crl.LJ 1394), Muhammad 
Rawab Vs. The State (2004 SCMR 1170) and Muhammad Sharif alias Baggu Vs. 
Home Secretary (1986 MLD 1767).  
5. 
We have heard learned counsel for the parties and have also perused 
the available record. The learned counsel for the applicant/petitioner, in 
support of his arguments, referred to Section 1(2) Cr.P.C. Reproduction of 
the same would be beneficial here which reads as under:- 
 
 
“Section 1. 
(1) 
…………….. 
 
 
(2) 
Extent. It extends to the whole of 
Pakistan  but, in the absence of any specific provision to 
the contrary, nothing herein contained shall affect any 
special or local law now in force, or any special 
jurisdiction or power conferred, or any special form of 
procedure prescribed, by any other law for the time 
being in force.” 
 
To address the arguments of learned counsel for the applicant/petitioner, we 
would like to refer and reproduce the provisions of Section 5(2) Cr.P.C. which 
reads as under:- 
C.R.Ps.87 & 125/15 etc. 
4 
 
Section 5. 
(1) 
……………. 
 
(2) 
Trial of offences against other laws. All 
offences under any other law shall be investigated, 
inquired into, tried, and otherwise dealt with according 
to the same provisions, but subject to any enactment for 
the time being in force regulating the manner or place of 
investigating, inquiring into, trying or otherwise dealing 
with such offences.” 
 
 
A bare perusal of both the above provisions would make it clear that the 
provisions of Code of Criminal Procedure are not applicable to the matters 
governed by any Special or Local Law unless specifically provided in the 
said laws wholly or to any extent. If a person, who was proceeded against 
under a Special Law, he would be dealt with according to the procedure of 
enquiry/investigation and trial as laid down in the said Special Law. While 
reverting back to the case in hand, all the petitioners/applicant were dealt 
with in accordance with the provisions of the Army Act. The provisions of 
Section 143 of the Army Act would reveal that it is the Federal Government 
or the Chief of Army Staff or any officer not below the rank of Brigadier 
empowered in this behalf by the Chief of Army Staff who is empowered to 
grant such pardons, remissions and suspensions. In view of this very specific 
provision of the Army Act and being a Special Law, in our view, this Court 
cannot assume such jurisdiction and that too in its Review jurisdiction. The 
scope of Review provided under Article 188 of the Constitution of Islamic 
Republic of Pakistan, 1973 is very limited as such jurisdiction can only be 
exercised by this Court when there is an apparent error on the face of the 
record having bearing on the fate of the case. The question of jurisdiction to 
entertain C.P.L.A. or C.A. has already been dealt with by this Court while 
deciding the appeals of the present petitioners vide judgment dated 1.04.2015 
and this issue has also been addressed in an un-reported judgment dated 
22.04.2015 delivered in Civil Petition No.276/2015 titled Ex. Havildar Iftikhar 
Hussain Vs. Federation of Pakistan through Secretary M/o Defence, Rawalpindi 
C.R.Ps.87 & 125/15 etc. 
5 
Cantt. This Court has time and again faced the question of jurisdiction 
relating to the orders or actions of the Armed Forces and it has been the firm 
view of this Court that there is no bar of jurisdiction if the same suffer from 
mala fide, jurisdictional error or corum non judicce. This Court in case of 
Ghulam Abbas Vs. Federation of Pakistan through Secretary Ministry of Defence 
(2014 SCMR 1530) 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. In the case of Rana 
Muhammad Naveed Vs. Federation of Pakistan through Secretary M/o Defence 
(2013 SCMR 596) this Court was of the view that there is no prohibition on 
the High Court to make an order under Article 199(3) of the Constitution if 
acts, actions or proceedings suffered from defect of jurisdiction or coram non 
judice. Further in the case of Federal Government through M/o Defence, 
Rawalpindi Vs. Munir Ahmed Gill (2014 SCMR 1530) this Court has observed 
that if an action of the Army Authorities with regard to a serving officer of 
the Armed Forces or any other person subject to the Army Act is established 
to be either mala fide, corum non judice or without jurisdiction then the same 
could be assailed through a Constitution Petition by such aggrieved person 
and the bar of jurisdiction under Article 199(3) of the Constitution would 
have no applicability. Thus, we are very much clear that jurisdiction of this 
Court can only be justified against orders or actions of the Army Authorities 
if same are suffering from mala fide, jurisdictional error or thus corum non 
judice but in the case in hand all the elements lack their existence. Moreover, 
it has been the firm view of the Courts that provisions of the Cr.P.C. would 
not attract to a case involving an offence dealt with by the Field General 
Court Martial under the Army Act. More so, we have been apprised by the 
learned DAG that in view of pendency of these petitions, the JAG Branch of 
C.R.Ps.87 & 125/15 etc. 
6 
the Army has already initiated the proceedings pertaining compromise in 
these cases with the concerned authorities and we have been informed that 
death sentences of the present petitioners have been converted to that of life 
imprisonment.  
6. 
In view of what has been discussed above, all the listed matters are 
dismissed being meritless. We are also unable to understand that when the 
main review petition of the applicant was dismissed how a miscellaneous 
application can be considered in that matter. So, for this reason too, CMA 
No.6887/2015 is liable to be dismissed.  
 
The above are the reasons for our short order of even date which 
reads as under:- 
“ For reasons to be recorded later, these Review Petitions 
alongwith Civil Misc. Application, are dismissed.” 
 
 
 
 
 
 
 
 
 
 
Judge 
 
 
Judge 
 
 
Judge 
ISLAMABAD 
23rd January, 2017 
APPROVED FOR REPORTING 
 (Nasir Khan)  
 
