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January 21, 2021

No law violated in military trial of Uzair Baloch, SHC told


January 21, 2021

The military trial of Uzair Jan Baloch was neither mala fide (in bad faith) nor coram non judice (without jurisdiction) and no fundamental right, including the right to a free trial, guaranteed under the constitution was violated, the Ministry of Defence told the Sindh High Court (SHC) on Wednesday.

Filing comments on a petition of the alleged Lyari gangster’s family challenging his conviction by a military court on charges of espionage, the Ministry of Defence and the judge advocate general said the findings of the field general court martial (FGCM) were based on legally admissible evidences that proved espionage charges against Baloch in pith and substance.

They said the FGCM adjudged Baloch guilty of espionage and awarded him 12 years of rigorous imprisonment. They added that Baloch had voluntarily admitted his involvement in various heinous and other crimes, including espionage against the state related to the work of defence, before a judicial magistrate.

They also said the provisions of the Pakistan Army Act’s (PAA) Rule 13(10), read with Section 164 of the Criminal Procedure Code, were complied with in letter and spirit in accordance with the law while recording Baloch’s judicial confessional statement.

They added that the sentence awarded to him was legal and condign (appropriate to the crime), and instant case had been dealt through strict compliance with the provisions of the PAA 1952 and the rules made thereunder.

They further said it had been proved at the trial beyond an iota of doubt that the petitioner’s son was involved in espionage and anti-state activities, thereby attracting the provisions of the Pakistan Prisons Rules’ Rule 214-A, which restricted entitlement of any ordinary or special remission, unless otherwise directed by the provincial government.

They added that the petitioner had alternative remedy available under the PAA to appeal against the conviction by the trial court before the army court of appeals under the provisions of the PAA’s Section 133-B.

The Ministry of Defence also questioned the SHC’s jurisdiction to entertain the petition under Article 199(3) of the constitution and various superior court judgments under which the bar of jurisdiction in cases of persons subject to the armed forces is absolute. The court was requested to dismiss the petition being not maintainable as well as devoid of merits.

After taking the comments on record, a division bench of the SHC headed by Justice Naimatullah Phulpoto adjourned the hearing until March 4 for further arguments. According to petitioner Razia Begum, her son was picked up by the law enforcement agencies in January 2016 and remained in their custody for over a year. She said he was booked and chargesheeted in 40 terrorism-related cases that were pending with the anti-terrorism courts.

She also said her son was shifted from the Central Jail Karachi on April 12, 2017 to face the FGCM for his alleged involvement in espionage and working for foreign intelligence agencies. She added that his custody was again handed over to the central prison in the first week of April, and that it was reported in the media that he was convicted by a military court for espionage and sentenced to 12 years in jail.

She further said applications had been sent to the military and prisons authorities for providing a copy of the military court’s proceedings but to no avail. The petitioner’s counsel said that Baloch was convicted without jurisdiction and cogent evidence, and that he had a right to a fair trial and to appeal against his conviction. He said the petitioner was not allowed to meet her son and no copy of the military court’s proceedings or judgment was provided to her.

He also said Baloch’s conviction under the PAA, read with Section 3 of the Official Secret Act, was illegal without adopting the required procedure as well as without any cogent evidence and coram non judice.

He further said Baloch’s right to consult and to be defended by a legal practitioner of his choice was not provided, so the entire trial was conducted in contravention of Article 10-A of the constitution.

The counsel said non-provision of the conviction judgment and other proceedings of the alleged trial was a complete violation of articles 8 and 10-A of the constitution, as they affected the ability of the convict to defend himself properly in the trial court and so amounts to denial of substantive right to justice on the touchstone of Islamic injunctions.

The court was requested to set aside the military court’s conviction as being in violation of the law, to direct the military authorities to produce the judgment and record of the proceedings before the court and to provide their copies to the petitioner. The petitioner also sought an injunction against the implementation of the impugned military court judgment and to allow the petitioner and her counsel to meet Baloch in prison.