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December 10, 2012

Commandos seek justice from CJ in Lal Masjid case

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Saniyah Eman
December 10, 2012

ISLAMABAD: As the Supreme Court has appointed a one-man judicial commission to find out the truth about the July 2007 Lal Masjid military operation, the family members of two convicted commandos of the Special Services Group (SSG), who had been court-martialed for opposing the operation, have sought the intervention of the chief justice to get the right of appeal in the superior courts against the verdict handed down by the Field General Court Martial (FGCM).
The judicial commission, led by Justice Shehzad Al-Shaikh of the Federal Shariat Court, was formed by Chief Justice Iftikhar Muhammad Chaudhry on December 4 in response to the complaints filed by the heirs of those missing since the 2007 military operation. The heirs were not satisfied with the findings of the Islamabad Police’s investigation of the Lal Masjid incident, which said the majority of the 103 people killed in the ‘Operation Silence’ were militants.
Now the heirs of the two convicted SSG commandos have asked the chief justice to use his good offices and help them approach the superior courts for a review of the court martial judgment, which has already been denied to them by the military authorities.
Both the commandos of the SSG’s Zarrar Company — Lance Havaldar Ghulam Ahmad, ex-Army number 3260368, and Sepoy Shahid Shehzad, ex-Army number 3261567, — were court-martialed by the FGMC and sentenced to 14-years and 7-years’ imprisonment respectively in August 2008. The FGMC verdict stated that while convicting Ghulam Ahmed and Shahid Shehzad, it was proved that they were in contact with the Lal Masjid administration and that they kept on updating them about the military operational details.
On the other hand, the commandos had pleaded not guilty, claiming that they had been arrested on May 2, 2007, two months before the launching of the Operation Silence [which was conducted in July 2007], and that they had been kept in solitary confinement for full 15 months before being

court-martialed and sentenced in August 2008.
Their sentences were confirmed by the army’s Court of Appeal and by the army chief. As their lawyers tried to approach the superior courts, they were told that they could not do so because of the Pakistan Army Act 1952, which states that the decision of the army’s Court of Appeals shall be final and shall not be called in question before any court or authority.
Left with no other remedy, the heirs of both the SSG commandos have sought the intervention of the chief justice of Pakistan to get the right of appeal in the superior courts against “the controversial verdict of unjustified punishment handed down by the FGCM”.
According to Colonel (retd) Mohammad Akram Advocate, Ex-Judge Advocate General and the President of the Ex-Servicemen Legal Forum, the convicted commandos wanted to move a civil court of appeal against the military court’s verdict but they were denied copies of the court martial proceedings “being prejudicial to the safety and interest of the state”.
Col Akram shot to prominence for defending a number of people convicted of involvement in the two abortive attempts on the life of Pervez Musharraf, on December 14, 2003 and on December 25, 2003. The convicts were sentenced by different FGCMs for their involvement in the two assassination attempts, prompting Colonel Akram to approach the Supreme Court and seek amendments in the Pakistan Army Act 1952 to secure at least one opportunity of appeal to the convicts against the verdict of the army tribunals before the apex court.
Going by the account of the convicted commandos, they were arrested on the orders of Lt Col Haroon Islam, the commanding officer of the Operation Silence who was leading 150 SSG commandos of the Anti-Terrorist Unit of the Zarrar Company. Haroon Islam, who was reporting directly to the then Corps Commander of Rawalpindi, Lt Gen Tariq Majeed, had ordered the arrest of his subordinates for expressing dissenting views on the Lal Masjid operation. Lt Col Haroon later lost his life during the Operation Silence.
The lawyers of Ghulam Ahmed and Shahid Shehzad maintain that as their clients were brought out of the Attock Fort for trial 15 months after being held in solitary detention, a Colonel-rank officer allegedly asked them to give statements under oath before the FGCM that they were in contact with the Lal Masjid administration and updating them about the operational detail. They were allegedly told that such a statement could put an end to their ordeal.
Allegedly groaning under mounting pressure from their seniors and badly shaken after having spent 15 months in the Attock Fort, both Ghulam and Shahid instantly agreed to give the required statements. The Field General Court Martial subsequently sentenced to rigorous imprisonment of 14 years and seven years respectively to Ghulam Ahmad and Shahid Shehzad, followed by the army Court of Appeal decision to uphold the verdict.
The lawyers argue that taking a statement from an accused under oath in a court martial and using it against him as evidence clashes with the basic spirit of the Qanoon-e-Shahadat because the investigators need to establish independently whether the charge is correct.
Ghulam Ahmed and Shahid Shehzad are not the only ones to have been convicted and denied the right of appeal in a superior court. Abdul Islam Siddiqui, an Army soldier who was hanged in 2005 after an in-camera military trial for his alleged involvement in an attack on Musharraf’s convoy, was also denied the right to file a writ in a superior court.
Voicing his opposition to the refusal of the military authorities to approach a civil court against a military court’s verdict, Col (retd) Mohammad Akram had petitioned the Supreme Court, seeking amendments in the Army Act 1952 so that the convicts can be provided reasons of the verdict to voice their grievance in appeal. He also pleaded that a special appellate tribunal can be constituted that features members from outside the military hierarchy, as it is highly unlikely that serving officers will take decisions that differ from those of the military high command.
Subsequently, on November 13, 2012, the Supreme Court asked the federal government to consider amending the Pakistan Army Act 1952 to remove an inconsistency because of which important documents of the Field General Court Martial are not provided to an accused.
The apex court said the inability to get copies of judgments, depositions or other record of the FGCM creates difficulties for convicts or accused to furnish grounds to file an appeal against a conviction. “Therefore, the Ministry of Defence may consider amendment to the Pakistan Army Act similar to the amendments done in the Pakistan Air Force Act Rules and the Pakistan Navy Act,” said a three-judge bench led by Chief Justice Iftikhar Chaudhry.
But the military authorities strongly opposed the amendments in certain provisions of the Pakistan Army Act 1952 pertaining to the proceedings of military courts. The army, in its written reply, submitted before the three-judge bench of the apex court, stated that the Army Act was a special act and that any attempt to bring it in line with the general law was to defeat the very purpose of that law.
“Any law relating to the armed forces is outside the operation of the normal scheme of the Constitution,” the court was told. But the chief justice, while directing the Ministry of Defence to think about amending the Army Act 1952, had adjourned the court proceedings for three weeks on November 13.