Option of Shahbaz Gill’s court martial under consideration

ISLAMABAD: Defence authorities are considering approaching the government with the request to hand over the custody of Shahbaz Gill to the military establishment for court martial.

Informed sources said the defence authorities are discussing the option seriously in view of what Shahbaz Gill had uttered a few days back. Inciting mutiny in the military is an extremely serious offence and it is being considered in the defence circles that the accused of such a serious crime should be tried by the military court under the Army Act.

These sources said that if the defence authorities reach this decision, they would approach the government through the Defence Ministry seeking the custody of Shahbaz Gill for court martial proceedings. The final decision will be taken by the civilian government.

Trial of civilians under the Army Act has always generated controversies and raised the question whether a civilian could be tried by a military court. According to a legal mind, the Section 2(1)(d) of the Army Act provides for trial of civilians in such cases. But senior lawyer on human rights and military matters Col (retd) Inam ur Rahim said that there was nothing in the Army Act to arrest and conduct the trial of any civilian. Only those civilians can be tried who are serving in operational areas only to the extent of violation of a secret act, he said.

During the Ayub Khan’s era following countrywide protest against the dictator, Ayub was apprehensive that a mutiny could take place in the army against him, he got the Army Act amended and inserted Section 2(1)(d) under which any civilian who instigates the ranks against the command and commits any offence under the provision of secret act can be tried by the army.

Col (retd) Inam said that Ayub, however, could not try any civilian during his tenure. During Bhutto’s tenure, a retired Brigadier was arrested for writing letters to the army command. The retired Brigadier, he said, was tried by the military court and sentenced to jail.

The lawyer further explained that during Zia’s tenure, Ahmad Faraz and Farkhanda Bukhari were arrested by the military authorities but the LHC had intervened and released both of them. The high court said the procedure was not adopted.

During Nawaz Sharif’s tenure, Col (retd) Inam said that a constitutional amendment was introduced to allow the army to conduct trial of civilians involved in terrorist activities. The said amendment had a sunset clause, which led to its lapse after four years.

In a recent decision of the LHC in Hasnain Inam vs Federation, he said, it was decided that the military authorities cannot arrest a civilian. In the SC, he said, the attorney general on behalf of the Defence Ministry insisted that still the army could conduct the trial of civilians under the Army Act. On this, the SC observed that the Constitution is superior to the Army Act and the Constitution gives certain guarantees on the issue of fundamental rights of citizens of Pakistan on the issue of arrest and trial. The petition was withdrawn.

Inam, however, said that the son of a retired major general was recently tried by the military court under sedition charges and awarded five-year rigorous imprisonment. The decision has been challenged in the Islamabad High Court. The case is presently pending there.