IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE/CONSTITUTIONAL JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE UMAR ATA BANDIAL, HCJ 
MR. JUSTICE MUNIB AKHTAR 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
(On appeal against the judgment dated 20.05.2015 
passed by the Lahore High Court, Lahore in Writ 
Petition No. 1146/2010) 
(Constitution Petition filed to challenge the conviction 
of the petitioner by the Field General Court Martial) 
 
Ex. Col. Muhammad Azad Minhas  
 
 
(In CA 1191/2016) 
Col. Inayatullah Khan and another  
 
 
(In Cnst.P. 18/2000) 
 
 
 
 
 
 
… Appellant/Petitioners 
VERSUS 
Federation of Pakistan through Secretary  
Ministry of Defence etc  
 
 
 
 
(In both cases) 
 
 
 
 
 
 
 
… Respondents 
 
For the Appellant/Petitioners: 
In person 
 
 
(In both cases)  
 
For the State: 
Mr. Sajid Ilyas Bhatti, Addl. Attorney Gen 
 
Barrister Hassan Adeel 
 
Major Haider Sultan, JAG Branch 
 
Major Zeeshan Zaman 
 
 
Dates of Hearing: 
24.09.2020, 
01.10.2020, 
15.12.2020, 
01.03.2021, 
27.04.2021, 
27.05.2021, 
30.11.2021, 18.01.2022 & 15.02.2022 
 
JUDGMENT 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this consolidated 
judgment, we intend to decide Civil Appeal No. 1191/2016 & Constitution 
Petition No. 18/2000, as common questions of law and facts are involved 
in both these matters. 
2. 
 
Precisely the facts of the matter pertaining to Civil Appeal 
No. 1191/2016 are that appellant Muhammad Azad Minhas joined 
Pakistan Military Academy as cadet and passed out as commissioned 
officer on 14.11.1971. Over the time, he became Colonel on 06.07.1995 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
2
and was posted as Colonel General Staff to Corps Mangla Cantt HQ 1. 
Whereas, the petitioner Inayatullah Khan in Constitution Petition No. 
18/2000 passed out from PMA Kakul in December, 1971. He also became 
Colonel with the efflux of time and was serving as Colonel Staff 17 Infantry 
Division, Kharian Cantt. On 26.09.1995 both of them were taken into 
custody along with two others by the intelligence agencies and as such 
they were thoroughly investigated. During course of interrogation, both of 
them were sent to face the following charges before the court under the 
Pakistan Army Act, 1952:- 
First Charge:- 
Under Section 59 of 
PAA 1952 
(Against all accused) 
Committing a civil offence, that it is 
to say, conspiring to wage war 
against 
Pakistan, 
an 
offence 
punishable under Section 121-A of 
the Pakistan Penal Code, in that 
they 
together 
at 
Rawalpindi, 
Mangla and elsewhere, between 
the period from May 1995 to 
September 1995, alongwith PA-
12680 Colonel Liaqat Ali Raja and 
others, conspired to wage war 
against Pakistan so as to overthrow 
the 
Federal 
Government 
of 
Pakistan by means of criminal 
force.  
 
Second Charge:- 
Under Section 55 of 
PAA 1952 
(Alternative to the 
first charge against 
accused No. 1 only 
i.e. 
Maj. 
General 
Zaheer ul Islam) 
 
Conduct to the prejudice of good 
order and military discipline, in that 
he, at the places and period 
mentioned in the first charge, 
knowing 
the 
existence 
of 
a 
conspiracy mentioned in the first 
charge, improperly did not report 
the matter to higher authorities 
concerned.  
 
Third Charge:- 
Under Section 55 of 
the PAA 1952 
(Alternative to the 
first charge against 
accused No. 3 only 
i.e. 
the 
appellant 
Colonel Muhammad 
Azad Minhas) 
 
Conduct to the prejudice of good 
order and military discipline, in that 
he, at the places and period 
mentioned in the first charge, 
knowing 
the 
existence 
of 
a 
conspiracy mentioned in the first 
charge, improperly did not report 
the matter to higher authorities 
concerned. 
Fourth Charge:-  Under Section 55 of 
the PAA 1952 
(Alternative to the 
first charge against 
Conduct to the prejudice of good 
order and military discipline, in that 
he, at the places and period 
mentioned in the first charge, 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
3
accused No. 4 only 
i.e. 
petitioner 
Inayatullah Khan) 
knowing 
the 
existence 
of 
a 
conspiracy mentioned in the first 
charge, improperly did not report 
the matter to higher authorities 
concerned.  
 
Fifth Charge:- 
Under Section 31(d) 
of the PAA 1952 
(Against accused No. 
2 only i.e. co-accused 
Brigadier Mustansar 
Billah) 
Attempting to seduce any person in 
the military forces of Pakistan from 
his allegiance to the Government of 
Pakistan, in that he, at Quetta, 
during May 1995, attempted to 
seduce 
PA-12621 
Colonel 
Muhammad Iqbal of Electronic 
Warfare Directorate, GHQ, from his 
allegiance to the Government of 
Pakistan by asking him to prepare a 
plan to neutralize the existing 
telephone communication system 
at Rawalpindi so as to enlist his 
(Colonel 
Muhammad 
Iqbal’s) 
support for furthering the design of 
the conspiracy mentioned in the 
first charge.  
 
3. 
 
The appellant/petitioner filed Constitution Petition Nos. 8 & 
9/1996 before this Court under Article 184(3) of the Constitution of Islamic 
Republic of Pakistan, 1973, challenging the validity of their arrest, 
detention and trial by the Field General Court Martial but the same stood 
dismissed vide judgment dated 14.05.1996. Thereafter, the trial 
proceeded and at the conclusion of the trial, they were found guilty to the 
extent of third and fourth charge for having knowledge of the conspiracy 
and failing to report the same to the higher authorities, which conduct of 
them was prejudicial to good order and military discipline. Vide order 
dated 30.09.1996 they were ordered to be dismissed from service and to 
further suffer rigorous imprisonment for two years & four years 
respectively. Their conviction was also confirmed by the Chief of Army 
Staff vide order dated 28.10.1996. Both of them filed appeals before the 
Court of Appeal but the same were also dismissed vide order dated 
06.11.1997. Pursuant to the conviction, their membership in the Army 
Officers Housing Scheme for allotment of a house at the time of 
retirement along with allotment of plots in Army Welfare Housing Scheme 
were ordered to be cancelled. Thereafter, the petitioner Inayatullah Khan 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
4
filed Constitution Petition No. 18/2000 before this Court whereas the 
appellant Muhammad Azad Minhas filed Writ Petition No. 1146 of 2010 
before the Lahore High Court, Lahore, which was dismissed vide order 
dated 20.05.2015. Being aggrieved by the judgment of the High Court, he 
filed Civil Petition No. 1234/2015 before this Court wherein leave was 
granted, consequently, Civil Appeal No. 1191/2016 has arisen.  
4. 
 
The appellant and the petitioner before us argued in person. 
During the course of arguments, the main contentions raised by them are 
precisely that when they were accused of principal offence i.e. First 
Charge, they could not have simultaneously been made accused of the 
alternate charge/offence. Contends that it is mandatory for the 
prosecution to prove the main offence before starting the trial on the 
alternative charge. Contends that the charge framed under the Pakistan 
Army Act is without jurisdiction and illegal as the same exclusively relates 
to misconduct or omission committed on the basis of assigned military 
duty. Contends that the impugned order of the Field General Court Martial 
was based upon mala fides, being coram non judice, as such, was without 
jurisdiction, therefore, the same is not sustainable in the eyes of law. 
Contends that their plots in Army Welfare Housing Scheme and 
memberships in Army Housing Scheme were cancelled illegally, without 
any backing of law, Rules or Regulations, which could authorize 
confiscation of their properties, therefore, the same is violative of Article 
13 of the Constitution of Islamic Republic of Pakistan, 1973. Lastly 
contends that the constitutional bar of limitation is not applicable to the 
proceedings conducted under Article 199 or Article 184 of the 
Constitution, as such, any delay in filing the Constitutional petitions either 
before this Court or before the High Court is of no avail to the 
respondents.  
5. 
 
On the other hand, learned Additional Attorney General 
argued that any person charged during Court Martial with any offence 
punishable under Section 59 of the Army Act may be found guilty of any 
other offence to which he might have been found guilty. Contends that 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
5
the entire proceedings of the Field General Court Martial were well within 
the recognized principles of criminal justice and the same are 
unexceptionable. Contends that the Pakistan Army Act has complete 
mechanism and jurisdiction to charge and proceed against any army 
personnel found involved in commission of any illegal act, as such, any act 
committed by them can be tried under the relevant law i.e. Pakistan Army 
Act, 1952. Contends that the allocation of plots and membership in the 
housing society are the privileges, which are only assigned for army 
officers but after dismissal from service the appellant/petitioner have lost 
right to retain such a privilege. Lastly contends that as a general principle 
Constitutional bar of limitation is not strictly applicable to the proceedings 
under Article 199 and 184 of the Constitution, however, it is not absolute 
as the same should be initiated promptly and within a reasonable time to 
avoid the question of laches.  
6. 
 
We have heard both appellant/petitioner and the learned 
Law Officer at considerable length and have perused the case record. The 
questions which crop up for our consideration are as follows:- 
i) 
Whether the appellant/petitioner were subject to Pakistan 
Army Act and the proceedings carried out by the forum 
constituted under Pakistan Army Act, 1952, were based upon 
mala fides, coram non judice, hence, passed without 
jurisdiction in violation of fundamental rights?  
 
ii) 
Whether an accused can be convicted under alternative 
charge/offence in case the main offence is not proved?  
 
iii) 
Whether the Constitution Petition No. 18/2000 filed before 
this Court is maintainable?  
 
iv) 
Whether the inordinate delay of about 13 years in filing the 
Constitutional Petition before the High Court can be 
condoned? 
 
v) 
Whether after dismissal from service, the appellant & 
petitioner are entitled for perks & privileges, which are 
meant for Army Personnels?  
 
 
  
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
6
7. 
 
In order to adjudicate the question (i) supra, it seems 
essential to evaluate the intent of the Legislature while legislating the 
aforesaid Act i.e. Pakistan Army Act, 1952, wherein it is categorically 
stated “whereas it is expedient to consolidate and amend the law 
relating to Pakistan Army”. Section 2 of the said Act provides that 
following persons shall be subject to this Act. Relevant portion of the said 
provision reads as under:- 
“2. Persons subject to the Act.- (1) The following persons shall be 
subject to this Act, namely:- 
 
(a) officers, junior commissioned officers and 
warrant officers of the Pakistan Army;” 
 
 
8. 
 
The plain reading of the afore-referred provision of law 
depicts that the persons subject to Pakistan Army Act, 1952, either in any 
of the capacity as an officer, junior commissioned officer or warrant officer 
during service at the relevant point of time are subject to Pakistan Army 
Act, 1952, and whenever an act violating any provision of said enactment 
is committed by them, the same would be exclusively dealt with by the 
provisions contained in the aforesaid Pakistan Army Act, 1952. There is no 
denial to this fact that both the appellant/petitioner were serving officers 
of 
Pakistan 
Army 
at 
the 
time 
when 
in 
pursuance 
of 
confidential/intelligence information regarding violation of the provisions 
of said enactment, they were taken into custody. During course of 
interrogation, the accusation against them was found to be correct and as 
such they were rightly dealt with under the law on the subject and as such 
their argument that the action taken by the authorities in pursuance of the 
material collected and the proceedings before the Court constituted under 
Pakistan Army Act, 1952, may be declared to be based upon mala fides has 
no legal justification. The enactment referred above does not disclose any 
exception to the general principle that any serving officer of military if 
found violating the law relating to its discipline would be dealt otherwise 
except under the Pakistan Army Act, 1952. Hence, the argument of the 
appellant/petitioner that their trial before the Field General Court Martial 
was an abuse of process has no sanctity and the same is vehemently 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
7
discarded. All the grievances of the appellant/petitioner regarding their 
apprehension, custody and prosecution before the Field General Court 
Martial are the steps, which can be taken by the order of the Commanding 
Officer subject to receipt of tangible information regarding the violation of 
any provision of Pakistan Army Act, 1952. Even under Section 549 of Code 
of Criminal Procedure, 1898, on receipt of an information from any source, 
the said provision can be pressed into to initiate proceedings to bring any 
subject to Army Act to face the attire of said enactment if there is an 
information regarding its breach/violation. Under this provision of law, the 
word “from any source” includes information supplied by armed forces of 
those who are falling within the jurisdiction of Pakistan Army Act, 1952 but 
their whereabouts are not traceable to them after their absence or being 
fugitive from law. In the instant case, both the appellant/petitioner were 
not falling within this category rather they were directly saddled with 
accusation falling squarely within the ambit of Pakistan Army Act, 1952, 
hence, the same was justifiably applicable in the given circumstances. In 
Ex. Gunner Muhammad Mushtaq Vs. Ministry of Defence (2015 SCMR 
1071), this Court held the custody, trial and conviction of the accused 
army personnel by the Field General Court Martial to be held in 
accordance with law. The question whether a serving Army Officer is 
subject to Army Act and is triable by Field General Court Martial also came 
under discussion in Asim Bashir Vs. Federation of Pakistan (2021 SCMR 
1176) wherein this Court candidly held as under:- 
“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 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
8
proceedings of Field General Court Martial stood vitiated on 
this score alone.” 
 
(Underlined to lay emphasis) 
 
9. 
 
In the case of Said Zaman Khan Vs. Federation of Pakistan 
(2017 SCMR 1249) this Court has extended the view of this Court in Ex-
Gunner Muhammad Mushtaq supra case wherein a civilian found in 
combat with army personnel was held liable to be tried under the Pakistan 
Army Act, 1952. One Said Zaman who was a civilian but was engaged in 
combat with the soldiers of the Pakistan army being a member of 
religiously motivated terrorist organization was found involved in 
attacking Armed Forces with deadly weapons causing death of Army 
personnel. This Court held that accused was involved in the commission of 
an offence under Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, as 
incorporated by the Pakistan Army (Amendment) Act, 2015, hence, by 
operation of law he became subject to the Pakistan Army Act, 1952, and, 
therefore, became liable to trial by a FGCM. The Court further held that 
the offence with which the accused was charged was obviously punishable 
under the ordinary law of the land triable by a Criminal Court, hence, 
constituted a "civil offence" as defined by subsection (3) of Section 8 of 
the Pakistan Army Act, 1952, and was liable to be tried by the Field 
General Court Martial in view of the provisions of Section 59 of the said 
Act. 
10. 
 
The concept of duty/obligation assigned to a military officer 
does necessarily relate to duty/responsibility assigned for a particular task, 
as argued before us if accepted correct it would amount to a narrow 
interpretation regarding responsibilities of members of disciplined force. A 
military officer of either of the rank is under bounden duty to execute 
momentary obligations assigned or not in order to uphold dignity, 
reputation, discipline and above all maintain order of the institution in 
letter and spirit. Any act or omission, which hampers integrity/discipline of 
the institution would definitely be accountable considering it an act triable 
under the Army Act. During the course of arguments, we have noticed that 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
9
the appellant/petitioner had already voiced their grievances while filing 
Constitutional Petition Nos. 8 & 9/1996 before this Court while calling in 
question the validity of their arrest, detention and trial by the Field 
General Court Martial convened under the provisions of Pakistan Army 
Act, 1952. However, this Court after discussing all aspects in detail and the 
relevant provisions of Law and the Constitution held that the 
appellant/petitioner along with other co-accused were subject to Pakistan 
Army Act and the trial held against the military officers before the Field 
General Court Martial was in accordance with law. All the objections 
raised before us are in-fact dealt with by this Court in a concrete manner 
while considering each and every aspect of the case with reference to “fair 
trial”, “due process” eliminating any scope of exploitation and dignity of 
the man while attending all requirements of justiciability and fairness to 
broaden the scope of safe administration of criminal justice. This judgment 
was reported as Shahida Zahir Abbasi Vs. President of Pakistan (PLD 1996 
SC 632). It would be advantageous to reproduce the relevant portion of 
the judgment, which reads as under:- 
‘From the above quoted passage, it is quite clear that the 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 an accused person. With the assistance of 
learned Attorney-General and the learned counsel for the 
petitioners we have gone through various provisions of the Act 
governing the procedure of trial before a Military Court and after 
going through the same, I am of the view that the procedure 
prescribed for trial before Military Courts is in no way contrary to 
the concept of a fair trial in a criminal case, I may also add here, 
that unlike the previous position when no appeal was provided 
against the conviction and sentence awarded by a Military Court, 
the Act now provides an appeal against the conviction and 
sentence awarded by a Military Court before an appellate forum.” 
  
11. 
 
In 
the 
second 
round 
of 
litigation, 
both 
the 
appellant/petitioner exhausted all legal remedies available to them under 
the Pakistan Army Act up to the level of Chief of Army Staff and the Court 
of Appeals. It was afterwards, that they again invoked the Constitutional 
jurisdiction of this Court as also of the learned High Court by filing 
Constitutional petitions calling in question all those preliminary questions 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
10
already dealt by this Court. As far as maintainability of these petitions is 
concerned, though this Court in a number of cases has already held that 
Article 199 (3) of the Constitution of Islamic Republic of Pakistan clearly 
ousted the jurisdiction of High Courts from making an order in relation to 
affairs of matter of a person who is member of the Armed Forces of 
Pakistan, or who is for the time being covered by any special 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 
and under this clause of Article 199(3) the jurisdiction of the High Court if 
assailed is barred with reference to the conviction or sentences recorded 
by the Field General Court Martial. However, a view contrary to earlier 
stance has now developed, which is recent in all fairness that the superior 
Courts have jurisdiction to 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 coram non judice. In Said Zaman supra, this 
Court has held that any proceedings, convictions and sentences awarded 
by the Field General Court Martial (FGCM) can be called into question 
before the Constitutional Courts on the ground of mala fides, if tainted 
with bias or taken for a collateral purpose to cause damage to a person 
without legal justification while ignoring all settled principles of decency 
and fairness. Specific allegations of the collateral purpose or an ulterior 
motive must be made to hilt and proved to the satisfaction of the Court. 
However, this new concept of interference is still holding very bleak 
ground to interfere in the presence of express provisions of Constitution. 
However, in the instant case we have not been able to find out any 
element of mala fides on the part of the prosecution or authority to 
entertain these petitions in the given circumstances. Therefore, in absence 
of any element of mala fides on the part of competent fora, the conviction 
and sentences inflicted to the appellant/petitioner by the Field General 
Court Martial cannot be stamped to be result of coram non judice. The 
argument that the order of Field General Court Martial was violative of 
fundamental rights has no legal sanctity because firstly there is no material 
available to substantiate such aspect. Further both of them joined Pakistan 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
11
Army as of their own, with free will and after serving as commissioned 
officers for considerable time, they were reported for an act as such being 
subject to Pakistan Army Act, 1952, proceedings were initiated against 
them in lieu of violation of law, hence it cannot be termed as infringement 
of any fundamental right, which actually was not specifically pointed out 
during the course of proceedings. Otherwise these aspects qua 
proceedings before us have already been dealt in the afore-referred 
salutary judgment of this Court. Otherwise, the “code of procedure” of the 
Field General Court Martial was even brought under the judicial scrutiny of 
this Court in another famous case titled F.B. Ali Vs. The State (PLD 1975 SC 
506) and the same was found to be in conformity with the generally 
accepted and recognized principles of administration of criminal justice. In 
Shahida Zaheer Abbasi case mentioned supra, this Court after thoroughly 
analyzing the provisions of Pakistan Army Act, Pakistan Army Rules and the 
Constitution of Islamic Republic of Pakistan has candidly reiterated while 
holding that the “Army Act, 1952 is one of those pieces of legislation which 
is protected under Article 8(3)(a) of the Constitution from being challenged 
on the grounds of its consistency with the provisions contained in Chapter I 
of Part II of the Constitution of Islamic Republic of Pakistan. 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 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.” These 
judgments were upheld by this Court in a subsequent judgment reported 
as District Bar Association Vs. Federation of Pakistan (PLD 2015 SC 401) 
and it was held that the provisions of Pakistan Army Act cannot be 
invalidated for offending against fundamental rights including Article 25 of 
the Constitution. Similarly Article 10-A also cannot be pressed into service 
to challenge the provisions of Pakistan Army Act, 1952. All these questions 
were determined by this Court in the earlier round of litigation, which has 
been pointed out in the preceding paragraphs. Furthermore, the case of 
the appellant/petitioner has become more sensitive by way of conviction 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
12
recorded against them and further it was served out, which makes them 
previous convicts.   
12. 
 
Now the “pivotal question” raised during arguments is as to 
whether an accused person under the Pakistan Army Act can be convicted 
for an alternative charge/offence in case the principal charge/offence is 
not proved. The concept of alternative charge is not unknown in the 
sphere of Pakistan Army Act. Sections 111(5) of the Pakistan Army Act and 
Rules 21(4) and 51(7) & (8) speak about the framing and punishment of an 
accused under alternative charge/offence. The bare perusal of the charge 
sheet reveals that both the appellant/petitioner were not only charge 
sheeted for the main offence but also for the alternative charges/offences 
and it was well within the knowledge of both of them. It is now well 
settled without second thought that if an accused is charged with one 
offence but from the evidence it appears to have committed a different 
offence for which he might have been charged under the said provisions of 
law, he may be convicted for the offence he is found to have committed, 
although he was not charged with the same. However, in the present case, 
the appellant/petitioner were not only charged for the main offence but 
for the alternative charges as well, which is spelled out from bare reading 
of charge sheet. All courts after evaluating the evidence led by the 
prosecution found that the main offence could not be proved against 
them but as there was sufficient evidence to sustain their conviction under 
the alternative charge, hence, they were convicted accordingly. Needless 
to mention that when appellant/petitioner had filed Constitutional 
petitions before this Court in the year 1996, although charge had been 
framed at that time but they never raised this objection before any court 
including this court at that juncture of time as to why they have been 
charge sheeted for the alternative offences, rather they failed to bring on 
record an iota of material in their defense except instant contention at 
belated stage, which has no legal value in the eyes of law. The concept of 
conviction under alternative charge in the absence of conviction under the 
main charge is a well established/recognized principle of criminal justice 
system as provided in Sections 236 to 240 of the Code of Criminal 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
13
Procedure. In Jiand Vs. The State (1991 SCMR 1268), this Court held that 
cumulative effect of Sections 236/237 Cr.P.C. is that if an accused is 
charged with one offence but from the evidence it appears to have 
committed an alternative offence for which he might have been charged 
under the provisions of that section, he may be convicted for an offence 
which he is shown to have committed, if supported by record, although he 
was not charged with the same. Even this aspect is not absolute, in 
absence of any alternative charge he can be convicted for any offence if it 
covers the ingredients of said offence.   
13. 
 
Now, we would advert to the question as to whether 
Constitution Petitions before this Court and the High Court were 
maintainable. Before dealing with this question, it would be in order to 
discuss as to whether the jurisdiction exercised by the Supreme Court 
under Article 184(3) of the Constitution is analogous to the power 
available to the High Court under Article 199 of the Constitution. In 
Shahida Zahir supra case, this aspect of the matter was considered at 
length and this Court while relying on an earlier judgment of this Court in 
Benazir Bhutto Vs. Federation of Pakistan (PLD 1988 SC 416), which is 
perhaps considered as the judgment of first impression laying down the 
parameters within which the power and jurisdiction of this Court under 
Article 184(3) of the Constitution is exercised, held as follows:- 
“I would, however, like to make it clear that the power conferred 
on the Supreme Court by Article 184(3) is distinct and has its 
origin in Article 22 of the 1956 Constitution and is exerciseable on 
its own terminology. The impression, if there is, that the trappings 
of sub Articles 1(a) and I (c) of Article 199 are also to be read into 
this Article appears to me to be without substance as there are no 
words in Article 184 (3) to incorporate them except, of course, the 
words make an order of the nature mentioned in the said Article, 
which are specifically referable to the nature of the order in 
sub-Article 199(c) of Article 199 giving such directions as may be 
appropriate for the enforcement of any of the Fundamental 
Rights. The nature of the order, however, is the end product of 
the Judicial power exercised. Therefore, it will not control or 
regulate, in any way, the exercise of power so as to make it 
exercisable only at the instance of the 'aggrieved party' in the 
context of adversary proceedings. 
 
………………………… 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
14
 
On the language of Article 184(3), it is needless to insist on a rigid 
formula of proceedings for the enforcement of the Fundamental 
Rights. If the framers of the Constitution had intended the 
proceedings for the enforcement of the Fundamental Rights to be 
in a strait-jacket, then they would have said so, but not having 
done that, I would not read any constraint in it, Article 184(3) 
therefore, provides abundant scope for the enforcement of the 
Fundamental Rights of an individual or a group or class of persons 
in the event of their infraction. 
  
Unlike in Article 199, the Framers of the Constitution placed no 
limitation nor prescribed any condition or stipulation for obtaining 
relief and redress under Article 184(3). No strait-jacket formula 
was prescribed for the enforcement of the Rights, the obvious 
reason that can be spelled out is that in case the Supreme Court 
was itself of the view in a given case that a question of public 
importance with reference to the enforcement of any of the 
Fundamental Rights conferred by Chapter 1 of Part II is involved, it 
should directly interfere, and any rigid formula or strait-jacket 
formula prescribed for enforcement of the Rights would be 
self-defeating." 
 
14. 
 
In District Bar Association Vs. Federation of Pakistan (PLD 
2015 SC 401), this Court has held that in our Constitution, fundamental 
rights have been guaranteed to the citizen; specific provisions have been 
inserted in the Constitution to reinforce such protection and where there 
is a violation in this behalf by the Executive or the Legislature, the remedy 
available to an aggrieved person is to approach the Courts for the 
redressal of his grievances and enforcement of his Fundamental Rights, as 
is evident from Articles 184 and 199 of the Constitution. It is, therefore, 
clear that although powers conferred upon this Court and the High Courts 
under Articles 184 (3) and 199 of the Constitution are distinct but an 
aggrieved party, whose fundamental rights have been infringed, can knock 
the doors of the Court for redressal of its grievances. However, it is also 
settled that any order passed or sentence awarded during a Court Martial 
or other forums under the Pakistan Army Act, 1952, is subject to judicial 
review both by the High Courts and the Supreme Court only on the ground 
of mala fides including malice in law, without jurisdiction or coram non 
judice. Before invoking the jurisdiction of this Court or the High Court, the 
test to pass is strictly confined as to whether the order/sentence passed 
during Court Martial is suffering from mala fides, without jurisdiction and 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
15
coram non judice. In absence of any mala fide on the part of the 
prosecution, 
the 
conviction 
and 
sentences 
awarded 
to 
the 
appellant/petitioner by the Field General Court Martial cannot be stamped 
to be coram non judice, which otherwise is a rare phenomenon, therefore, 
it can safely be said that the Constitutional petitions filed by the 
appellant/petitioner either before this Court or before the High Court in 
the given circumstances as disclosed in detail were not maintainable. Even 
otherwise, petitioner Inayatullah Khan by filing Constitution Petition No. 
18/2000 had challenged his conviction after lapse of more than three 
years. Same is the case with appellant Muhammad Azad Minhas, who had 
challenged his conviction before the High Court after delay of more than 
13 years. It is established principle that delay defeats equity and equity 
leans in favour of vigilant. Any person may have an enforceable right but if 
he fails to enforce such right within the time stipulated by law then the 
right becomes unenforceable. Law of limitation is not considered a mere 
formality and is required to be observed being of mandatory nature. Law 
of laches takes away right of the party to have the right enforced, which 
otherwise, is enforceable under the law because law requires that one 
having an enforceable right should seek enforcement whereof within time 
specified by law. Although as a general principle bar of limitation is not 
applicable to the proceedings under Article 199 and 184 of the 
Constitution but insistence is placed on initiating proceedings promptly 
and within a reasonable time to avoid the question of laches. Reliance is 
placed on Dr. Muhammad Tahir-ul-Qadri Vs. Federation of Pakistan (PLD 
2013 SC 413). In the said case, this Court while placing reliance on an 
earlier judgment of this Court reported as Jawad Mir Muhammadi vs. 
Haroon Mirza (PLD 2007 SC 472) held that laches per se is not a bar to the 
constitutional jurisdiction and question of delay in filing would have to be 
examined with reference to the facts of each case; question of 
delay/laches in filing constitutional petition has to be given serious 
consideration and unless a satisfactory and plausible explanation is 
forthcoming for delay in filing constitutional petition, the same cannot be 
overlooked or ignored subject to facts and circumstances of each case. In 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
16
S.A. Jameel v. Secretary to the Govt. of the Punjab (2005 SCMR 126), this 
Court held that question of laches has to be examined on equitable 
principles for the reason that the exercise of Constitutional jurisdiction is 
always discretionary with the Court and the relief so granted is always in 
the nature of equitable relief. In case the Court finds that the party 
invoking Constitutional jurisdiction is guilty of contumacious lethargy, 
inaction, laxity or gross negligence in the prosecution or a cause for 
enforcement of a right, the Court would be justified in non- suiting such 
person on the premise of laches. Both the appellant/petitioner could not 
give sufficient reason as to why they remained silent for years and did not 
invoke the Constitutional jurisdiction well in time, therefore, on this score 
alone, their Constitutional petitions are liable to be dismissed.    
15. 
 
The only question which remains in the field is whether after 
dismissal from service, the appellant/petitioner are still entitled for the 
privileges i.e. membership in the housing scheme, allotment of plots and 
further all amenity services, which are meant for the army personnel. 
Further, that the withdrawal of all these facilities does fall within the ambit 
of dictum ‘double jeopardy’? It is settled that dismissal from service 
squarely takes away all the perks, privileges and amenity services from an 
army personnel conferred in lieu of his induction into the Pakistan Army. 
All these benefits are subject to service and any action contrary to service 
structure takes away not only perks and privileges rather the privilege of 
salary, pension, gratuity etc for which he was otherwise entitled. Soon 
after the action taken by the military authorities against the 
appellant/petitioner, their services were terminated resulting into 
depriving them of all the benefits and in pursuance of that order, which 
was upheld to the highest forum, the benefits attached to the service i.e. 
plot, house, amenity services etc had been withdrawn. There is no second 
cavil to this proposition that after dismissal from service, the 
appellant/petitioner cannot claim any benefit because of the reason that 
their termination was in pursuance of the defiance of the discipline and 
order of the institution discretely. We have repeatedly asked them to 
show any law or precedent wherein the perks, privileges and amenity 
CIVIL APPEAL NO. 1191 OF 2016 AND 
CONSTITUTION PETITION NO. 18 OF 2000 
17
services were continued to be enjoyed by a person, who was dismissed 
from service after facing court martial but they failed to do so. Apart from 
this, to consider whether it amounts to ‘double jeopardy’, it would be in 
order to reproduce Section 403 of the Code of Criminal Procedure and 
Article 13(a) of the Constitution of Islamic Republic of Pakistan, 1973, 
which read as under:- 
“403. Persons once convicted or acquitted not to be tried for the same 
offence. (1) A person who has once been tried by a Court of competent 
jurisdiction for an offence and convicted or acquitted of such offence 
shall, while such conviction or acquittal remains in force, not to be liable 
to be tried again for the same offence, nor on the same facts for any 
other offence for which a different charge from the one made against 
him might have been made under section 36, or for which he might have 
been convicted under section 237. 
 
13. No person— (a) shall be prosecuted or punished for the same offence 
more than once”  
 
16. 
 
A close analysis of the above said provisions discloses that 
the case of the appellant/petitioner does not fall within the ambit of these 
provisions of law and the Constitution. The concept of double jeopardy is 
placed upon entirely different premises which are meant for entirely 
different situations which are squarely missing in this case, hence, the 
claim of the appellant/petitioner that they are victim of double jeopardy is 
without any legal foundation, consequently it is immensely rebutted.   
17. 
 
For what has been discussed above, the appeal and 
Constitution petition are dismissed being without merit.  
 
 
CHIEF JUSTICE 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the  
Announced on 12.09.2023 
 
Approved For Reporting 
Khurram 
