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January 6, 2015

Amendments not to stop appeals before superior courts


January 6, 2015

ISLAMABAD: The Army Act and the proposed amendment of this law do not have the option of appeal for convicts of military courts before civil superior courts but a Supreme Court bench headed by Chief Justice Nasirul Mulk has held that not only the apex court but any high court can intervene and hear appeals against decisions of military courts.
Justice Hamoodur Rehman was first chief justice to pen a judgment on the issue of powers of superior judiciary to hear appeal against decisions passed by military courts or military appellate tribunals. High courts as well as the Supreme Court have repeatedly held that superior judiciary has the powers to hear appeals against any orders passed by the military courts if the process of law was not followed during the trial and while passing the judgment. If one goes by the judgments passed so far by the superior judiciary, the decisions of the military courts will be challenged in civil superior courts no matter what the new amendments to law and constitution say.
Col (R) Inaam-ur-Raheem, senior legal and constitutional expert who is considered an authority on Military Act, says in 1973 three journalists Mujeebur Rehman Shami, Altaf Hussain and Ijaz Hussain were arrested on the 10th of a month and a military court was to hear their case on 15th while the Lahore High Court also fixed appeal against their arrest on the same day. “The military court re-fixed the case on 13th and sentenced them all for five years,” said Inaam. Later, the Supreme Court accepted the appeal and Chief Justice Hamood-ur-Rehman set aside the illegal and unconstitutional orders of the military court. The judge of the military court was also summoned in the court who had maintained that he issued order on 13th because the accused were not accepting the legitimacy of military courts.
Later in FB Ali Case (PLD 1975 SC 506), the Supreme Court held in categorical terms that superior judiciary will intervene and will hear appeals against

decisions of the military courts whenever three things would be found in the process of the trial; i- Malafide ii- Quorum without jurisdiction iii- Quorum non-judice.
In Saifuddin Case (PLD 1977 LHR 1174), military courts orders against famous poet Ahmad Faraz were set aside by Justice Afzal Zullah.
According to Inaam-ur-Raheem, in a service matters case of one Abdul Basit (Federation Vs Abdul Basit PLD 2012), Justice Nasir-ul-Mulk added ‘colourful exercise’ in three points defined in FB Ali case. The Supreme Court bench headed by Justice Nasir-ul-Mulk held when superior judiciary will find out mala fide, quorum without jurisdiction, quorum non-judice or any coulourful exercise in trial or proceedings of a case in military court, it will intervene, hear appeals and will dispense with justice. Inaam said that Justice Nasir-ul-Mulk held that in case above issues in the process of trial of military courts, it is the obligation of the high court to hear the appeals.
In 2013 in ‘Rana Naveed Vs Federation’ case where a military appellate tribunal comprising Lt Gen Javed Alam, Core Commander Mangla (now convener of APML) and three brigadiers converted life imprisonment of one Rana Naveed and 10 years imprisonment of one Amir Sohail announced by a military court into death penalty on orders of General Musharraf, the apex court took the case as review petition and set aside the order of military appellate tribunal. The apex court held that mala fide is clear in case of these two persons, and if situation is same in case of other convicts, their cases should also be revisited. However, the same was never done.
In 2014, in case Fedreation Vs Major Tahir, the Supreme Court dismissed appeal of the government against a judgment of the high court, which had set aside decision of the military court. Justice Ijaz Afzal of Supreme Court held that due process of law was not followed during the trial so punishment awarded by the military authorities is illegal, unconstitutional and unjustified. Major Tahir was retired by General Musharraf and when he moved an appeal he was dismissed. The apex court set aside the later decision.
Under Article 170 of 1956 constitution every citizen was given the right to challenge any government department including military. According to Inaam, in the 1962 constitution, dictator Ayub wrote in article 98(3)(a) that no army officer can be summoned in civil courts in relation to his service matters. Ayub also added in the constitution of 1962 that decisions of the military tribunals could not be challenged. Inaam-ur-Raheem said that after this civil courts got terrified and mostly did not touch the question of unconstitutional process but daring and honest judges always tried their best to uphold the constitution. He said that unfortunately, in 1973 constitution the then Prime Minister Zulfiqar Ali Bhutto added article 199(3) & (5) through which attempt was made to immune military courts from civil courts. He said through controversial 1st amendment in the constitution, Mr Bhutto even allowed military courts to try civilians who became subject of military court proceedings. He said after failed Tashqand treaty, Ayub had introduced 2(1)(d) in Military Act to fix civilians who were getting ready to launch a movement against him. Inaam said when senior advocate Abdul Hafeez Lakho of PPP moved Sindh High Court against a military court decision the SHC has held that the same cannot be challenged because of 199(3) & (5). Innam maintained that after this circumstances led to the hanging of ZAB. He said General Musharraf tried to add many crimes in the list to be tried under Army Act but even the National Assembly with PML-Q majority refused to pass such unconstitutional and controversial amendments but now PML-N and its leaders Nawaz Sharif and Chaudhry Nisar are set to amend Army Act undemocratically and unconstitutionally.

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