IN THE SUPREME COURT OF PAKISTAN 
(REVIEW JURISDICTION) 
 
PRESENT: 
        MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, HCJ. 
MR. JUSTICE EJAZ AFZAL KHAN. 
MR. JUSTICE SH. AZMAT SAEED. 
 
 
CIVIL REVIEW PETITION NO. 229 OF 2006 
IN 
CIVIL APPEAL NO.   802    OF    2006.  
(On 
review 
against 
the 
judgment 
dt. 
25.09.2006 passed by this Court in Civil 
Appeals No. 613, 614, 782, 802 and 825 of 
2006).   
 
Rana Muhammad Naveed and another. 
 
…Petitioners 
Versus 
Federation of Pakistan thr. Secy. M/o Defence. 
…Respondent 
 
For the petitioners:  
Mr. Hashmat A. Habib, ASC. 
 
 
 
 
Mr. M. S. Khattak, AOR. 
 
 
 
 
 
For M/o Defence:  
Mr. Mujeeb-ur-Rehman, ASC. 
 
 
 
 
Col. Tahir.  
 
 
 
 
Maj. Shahjehan, JAG Branch.  
 
Date of hearing:  
28.02.2013. (Judgment Reserved). 
 
 
 
 
 
J U D G M E N T   
 
 
 
EJAZ AFZAL KHAN, J.--  This civil review petition has 
arisen out of the judgment dated 25.09.2006 of this Court, whereby 
Civil Appeal Nos. 782 and 825 were dismissed.   
2. 
 
Brief facts of the case relevant for the purpose of this 
case are described in para 3 of the judgment under review which 
read as under :-  
“3.   Civil Appeals No. 782, 802 and 825 of 2006. – 
Appellants Zubair Ahmed @ Tauseef, Rashid Qureshi 
@ 
Tipu 
@ 
Ibrahim, 
Ghulam 
Sarwar 
Bhatti 
@ 
Salahuddin, Ikhlas Ahmed @ Rusi, Naik Arshad 
Memood (Ex-Number 7351783), Rana Muhammad 
Naveed, and Ameer Sohail @ Sajjad were found 
involved in the commission of offence falling within 
the mischief of Section 31(d) read with Section 59 of 
the Pakistan Army Act [herein after referred to as “PA 
Act”], for seducing and attempting to seduce 
persons in the Military Force of Pakistan from their 
CRP. 229/06 in CA.802/06. 
2 
allegiance to the Government of Pakistan, as such, 
they were arrested and tried by the Field General 
Court Martial. They were adjudged guilty for the 
offences for which they were charged with, as such 
sentences of imprisonment for life were awarded to 
them. Which were confirmed by the confirming 
authority. In the appeals filed by them, the Appellate 
Court while dismissing their appeals enhanced their 
sentences from life imprisonment to death. Ultimately, 
they approached the High Court by filing Writ 
Petitions, but the same have been dismissed by 
means 
of 
impugned 
judgments 
being 
not 
entertainable under Article 199 (3) of the Constitution 
of Islamic Republic of Pakistan [herein after referred 
to as ‘the Constitution’]”.      
 
3. 
 
Learned counsel appearing on behalf of the petitioners 
contended that he may not have any cause against the conviction 
and sentence awarded by the Field General Court Martial but he 
would certainly have one against the Court of appeals exercising 
powers under Section 133-B of The Pakistan Army Act, 1952. Such 
Court, the learned counsel added, has the power to accept or 
reject the appeal in whole or in part; substitute a valid finding or 
sentence for an invalid finding or sentence; annul the proceedings 
of the Court Martial on the ground that they are illegal or unjust; 
remit the whole or any part of sentence or reduce or enhance the 
same when there is an appeal before it in terms of Section 133-B. 
But it has no power, argued the learned counsel, to enhance a 
sentence when there is no appeal before it in terms of the section 
mentioned above. He next contended that such Court, even if 
there is an appeal before it, cannot enhance a sentence, without 
giving the convict an opportunity to show cause as to why his 
sentence should not be enhanced. Any enhancement made 
without giving such opportunity to the convict, argued the learned 
counsel, would amount to condemnation without hearing which is 
violative of the principle of natural justice enshrined in the maxim 
audi alteram partem and the provisions of the Constitution of 
CRP. 229/06 in CA.802/06. 
3 
Islamic Republic of Pakistan ensuring due process of law, and that 
the judgment omitting to take notice of this essential aspect of 
Criminal Jurisprudence, is liable to be reviewed.  
4. 
 
Learned 
counsel 
appearing 
on 
behalf 
of 
the 
respondent contended that when it has been observed by this 
Court in para 27 of the judgment under review that the Court of 
appeal has power to enhance sentence, enhancement of 
sentence being covered by the words used in Section 133-B (2)(f) of 
the Act cannot be termed as an act without jurisdiction or coram 
non judice. When we asked the learned counsel for the respondent 
as to what is the time for filing an appeal before the Court of 
appeal, he by reading out the words from Section 133-B (1) 
submitted 40 days from the date of announcement of finding or 
sentence or promulgation thereof which ever is earlier. When we 
asked as to what is the date of announcement of finding, he 
without a moment’s hesitation mentioned 21st July, 2005. When we 
asked what is the date of filing appeal before the Court of appeals, 
the learned counsel after seeing the relevant record submitted that 
Ameer Sohail filed an appeal on 2nd September, 2005 while Rana 
Muhammad Naveed filed an appeal in the form of a letter on 
26.11.2005. When asked whether these appeals could be said to 
have been filed within time as prescribed in Section 133-B of the 
Act, the reply of the learned counsel was in no, in case the time is 
reckoned from the date of announcement of finding or sentence. 
He, however, added, that in case it is reckoned from the date of 
confirmation of finding or sentence, the appeal of Ameer Sohail 
was within time. He, however, conceded hat the appeal filed by 
Rana Muhammad Naveed was not within time, whether it is 
CRP. 229/06 in CA.802/06. 
4 
reckoned from the date of announcement of finding or sentence or 
confirmation thereof. When asked what nexus confirmation has with 
the time prescribed for filing an appeal when it according to the 
section mentioned above would run either from announcement of 
finding, sentence or promulgation thereof whichever is earlier, he 
could not give any satisfactory reply except asking us to read Rules 
54 to 58 of The Pakistan Army Act Rules, 1954. We carefully and 
even critically read the rules mentioned above but did not find 
anything therein which could either substantiate the stance of the 
learned counsel or suggest any other mode of reckoning time. The 
mode spelt out by the section for reckoning time gets added 
strength when it is read together with Sections 124 and 131 of the 
Act. When we asked, whether an opportunity to the convicts to 
show cause as to why their sentence should not be enhanced was 
ever given even if it is assumed that they filed appeals in terms of 
Section 133-B of the Act, the reply of the learned counsel was again 
in no.  
5. 
 
We have gone through the entire record carefully and 
considered the submissions of the learned counsel for the parties.  
6. 
 
Before 
we 
proceed 
to 
discuss 
the 
arguments 
addressed by the learned counsel for the parties, we would like to 
refer to Section 133-B which reads as under :- 
 
“[133-B. – Court of Appeals for other cases.--  (1)  Any 
person to whom a court martial has awarded a 
sentence 
of 
death, 
imprisonment 
for 
life, 
imprisonment exceeding three months, or dismissal 
from the service after the commencement of the 
Pakistan Army (Amendment) Act, 1992, may, within 
forty days from the date of announcement of finding 
or sentence or promulgation thereof, whichever is 
CRP. 229/06 in CA.802/06. 
5 
earlier, prefer an appeal against the finding or 
sentence to a Court of appeals consisting of the 
Chief of the Army Staff or one or more officers 
designated by him in this behalf, presided by an 
officer not below the rank of Brigadier in the case of 
General Court Martial or field General Court Martial 
or District Court Martial or Summary Court Martial 
convened or confirmed or counter signed by an 
officer of the rank of Brigadier or below as the case 
may be, and one or more officers, presided by an 
officer not below the rank of Major General in other 
cases, hereinafter referred to as the Court of Appeals:  
 
 
Provided that where the sentence is awarded 
by the court martial under an Islamic law, the officer 
or officers so designated shall be Muslims:  
 
 
Provided further that every Court of Appeal’s 
may be attended by a judge advocate who shall be 
an officer belonging to the Judge Advocate 
General’s Department, Pakistan Army, or if no such 
officer is available, a person appointed by the Chief 
of the Army Staff. 
 
2) 
A Court of appeals shall have power to – 
 
a)  accept or reject the appeal in whole or in 
part; or  
 
b)  substitute a valid finding or sentence for 
an invalid finding or sentence; or  
 
c)  call any witness, in its discretion for the 
purpose of recording additional evidence in 
the presence of the parties, who shall be 
afforded an opportunity to put any question 
to the witness; or  
 
d)  annul the proceedings of the court 
martial on the ground that they are illegal or 
unjust; or  
 
CRP. 229/06 in CA.802/06. 
6 
e)  order retrial of the accused by a fresh 
court; or  
 
f)     remit the whole or any part of the 
punishment or reduce or enhance the 
punishment or commute the punishment for 
any 
less 
punishment 
or 
punishments 
mentioned in this Act. 
 
3) 
The decision of Court of Appeals shall be final 
and shall not be called in question before any court 
or other authority whatsoever.]”  
 
 
7. 
 
 A look at the provision reproduced above would 
reveal that the Court of appeal has the power to reduce or 
enhance the punishment but this could only be done when there is 
an appeal before it in terms of the section reproduced above. An 
appeal against conviction and sentence could be filed before the 
Court of appeal within 40 days from the date of announcement of 
finding, sentence or promulgation thereof. The period of limitation 
would run from any of them which ever is earlier. Announcement of 
finding and award of sentence according to the averments made 
in the concise statement submitted by the learned counsel for 
respondent is 21st July, 2005. This date was also confirmed by the 
learned counsel in his statement made at the bar after seeing the 
relevant record. Dates of filing appeals, according to the aforesaid 
statements in the case of Ameer Sohail is 2nd September, 2005 while 
in the case of Rana Muhammad Naveed is 26.11.2005. These 
appeals, quite obviously, were barred by time. There were thus no 
appeals before the Court of Appeal in terms of Section 133-B of the 
Act. Enhancement of sentence could not have been made in a 
vacuum. Such enhancement is essentially against the principle of 
CRP. 229/06 in CA.802/06. 
7 
natural justice enshrined in the maxim audi alteram partem and 
Articles 4 and 9 of the Constitution.  
8. 
 
Assuming for the sake of arguments, that there were 
appeals before the Court of Appeal, yet sentence of imprisonment 
could not have been converted into that of death without giving 
an opportunity to the petitioners to show cause why their sentence 
should not be enhanced. Admittedly no opportunity was given to 
the petitioners to show cause, why their sentence should not be 
enhanced. In any case, they were to be informed whether they 
were being heard against conviction or enhancement of sentence. 
The sentence thus enhanced would be without jurisdiction and 
coram non judice. Therefore, it cannot be sustained under any 
cannons of law and propriety.  
9. 
 
Yes, Article 199(3) of the Constitution prohibits the High 
Court from making an order in relation to a person who is a member 
of Armed Forces of Pakistan or who is for the time being subject to 
any law relating to any of those forces 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 but not when acts, 
actions or proceedings which suffer from defect of jurisdiction and 
are thus coram non judice. The cases of “Federation of Pakistan and 
another. Vs. Malik Ghulam Mustafa Khar” (PLD 1989 S.C. 26), 
“Secretary, Ministry of Religious Affairs and Minorities and two 
others. Vs. Syed Abdul Majid” (1993 SCMR 1171) and “Ghulam 
Abbas Niazi. Vs. Federation of Pakistan and others” (PLD 2009 S.C. 
866) may well be referred to in this behalf. Once we are convinced 
that the order enhancing sentence is without jurisdiction and coram 
non judice, it cannot be allowed to hold the field notwithstanding it 
CRP. 229/06 in CA.802/06. 
8 
surfaced during the course of hearing a review petition. The error 
being patent on the face of the judgment requires correction for 
the ends of justice.  
10. 
 
For the reasons discussed above, this Civil Review 
Petition is allowed and the sentence thus enhanced is declared 
without jurisdiction and coram non judice.         
 
 
 
 
 
 
 
 
   Chief Justice 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Judge 
 
Judge 
 
Announced in open Court at Islamabad on _________________. 
 
Judge 
