Lal Masjid commandos court-martialed seek justice from SC

[sparklingway]

Lal Masjid commandos seek Supreme Court’s intervention ​

Denied copies of court martial proceedings; ISPR declines comments
By Umar Cheema

ISLAMABAD: Two Army commandos of Zarar Company, who had allegedly opposed the Lal Masjid operation in 2007 and were subsequently court-martialled, have been denied the right of appeal in superior courts.

The Judge Advocate General (JAG) Branch of the Pakistan Army has also refused them copies of the verdicts, considering it as “prejudicial to the safety and interests of the State”. Lance Havaldar Ghulam Ahmad, ex-Army number 3260368, and Sepoy Shahid Shehzad, ex-Army number 3261567, were arrested allegedly for opposing the Lal Masjid operation on May 2, 2007, two months before it was launched.

They were kept in solitary detention for 15 months before they were court-martialled in August 2008, sentencing Ghulam Ahmad to 14-year rigorous imprisonment and Shahid Shehzad to seven years, said an application sent to the Chief Justice of Pakistan. “That the applicant wants to challenge the controversial verdict of unjustified punishment delivered by Field General Court Martial before the honourable High Court but JAG Department of GHQ has denied the copy of proceedings and judgment,” Ghulam Ahmad has written to the Chief Justice.

The convicts were under the subordination of Lt. Col. Haroon, who later died in the Lal Masjid operation. The News sent the ISPR a list of nine questions relating to the Army’s justice system besides the cases mentioned in the report. The ISPR offered ‘no comment.’

According to details gathered from family sources and others related to the case,

Ghulam Ahmad was averse to the idea of operation and informally discussed his thoughts with colleagues. As the word travelled to the chief of the Zarar Company, Ghulam Ahmad was taken into custody, allegedly tortured and detained in Attock Fort. Shahid, who held the same views, was the next to face arrest.

But as they were brought out of the Fort for trial, a Colonel-rank officer allegedly asked them to submit a statement before the court that they were in contact with the Lal Masjid administration and updating them about the operational detail, a family member of Ghulam Ahmad told The News. They were badly shaken after spending 13 months in the Attock Fort, totally disconnected with their families. The Field General Court Martial sentenced them to rigorous imprisonment of 14 years and seven years respectively to Ghulam Ahmad and Shahid Shehzad. The Army court of appeal upheld the verdict.

They are not the first being denied the right of appeal in a superior court. Abdul Islam Siddiqui, a soldier of the Pakistan Army hanged in 2005 after an in-camera military trial for his alleged involvement in the December 2003 attack on former president Pervez Musharraf’s convoy, was reportedly also denied the right to file a writ in any superior court.

Five other convicted, Lt. Col. Abdul Ghaffar, Lt. Col. Khalid Mehmood Abbasi, Lance Havaldar Arif Hussain Shah, Sepoy M. Afzal and Assistant Warrant Officer Safdar Ali, have also been denied proceedings on the same grounds in the recent past. Lt. Col. Ghaffar was released in 2006 after completing three-year sentence apart from dismissal from service delivered by court martial. Lt. Col. Khalid, jailed for six months besides dismissal, has also completed his jail term.

According to Pakistan Army Act’s section 133-A and 133-B, the decision of the Army’s appellant court ‘shall be final and shall not be called into question before any court of authority,’ Col. (retd) Akram, a lawyer who appeared before the court martial, wrote in the petition filed before the court, challenging the discriminatory Army Act. He has challenged these controversial clauses in the Supreme Court since 2004 but the petition is yet to be taken up by the apex court.

Contrary to civilian appellant courts that can only confirm or commute sentences, the Army’s appellant courts can enhance sentences as well. For example, an accused in Pervez Musharraf’s attack case, Rana Naveed, was granted life sentence by the court martial but the Army’s appellant court converted it into death sentence.

Below is a list of questions that was returned by the ISPR, offering no comment.

1) Lance Havaldar Ghulam Ahmad (ex-Army Number 3260368) and Sepoy Shahid Shehzad (ex-Army Number 3261567) were court-martialled allegedly for their views averse to the Army’s decision of waging operation against Lal Masjid clerics. Now when they have been awarded sentence and the Army’s Court of Appeal confirmed it, they want to move a civil court of appeal but have been denied copies of the Court Martial proceedings ‘being prejudicial to the safety and interest of the state’. Is it true?

2) Five others convicted namely Lt. Col. Abdul Ghaffar (WP No. 2614/2009), Lt. Col. Khalid Mehmood Abbasi (WP No. 2646/2009), Lance Hav Arif Hussain Shah (WP No. 3449/2009), Sepoy M. Afzal (WP No. 97/2007) and Asst Wrt Officer Safdar Ali (WP No. 131/2010), have also been denied copies proceedings on the same grounds. Is it true?

3) The Constitution of Pakistan guarantees fundamental right of every citizen for having access to impartial and independent courts. Don’t you think these convicted persons are being deprived of their fundamental right by denying them copies of the court martial proceedings required for moving a civil court?

4) Is it true the officers constituting the Court Martial and the Court of Appeal are subordinates in the chain of command of the executives?

5) In order to eliminate the element of command influence in dispensation of military justice, Court of Military Appeals exists in USA, UK, Canada and Australia that are constituted by civilian judges of the superior judiciary. Why has no such step been taken by the Pakistan Army?

6) Under the Army Act, the sentence of death in all cases, and the sentence of dismissal and above in the case of an officer, is confirmed by the Chief of the Army Staff. Is it true?

7) Is it true that if the Court of Appeal wants to release a person whose sentence is already confirmed by the Army Chief, the appellant court has to obtain concurrence from the Army Chief before pronouncing its judgment?

8) The Pakistan Army Act states that the decision of the court of appeals shall be final and shall not be called in question before any court or authority. Is it true?

9) Under the Pakistan Army Act, the Army’s Court of Appeal can remit a punishment in part or whole, reduce or enhance or commute it to lesser punishment. Is it true?

For details regarding the Abdul Islam Siddiqui case, consult the following :- DAWN.COM | Front Page | Convict in Musharraf attack case denied appeal

 

[sparklingway]

Before discussing this delicate situation, I'll like to address a few things. Firstly remove all positive and negative biases before reporting. Also keep in mind that transparency and judicial clarity are very important subject matters.

The media today is active and exploring new frontiers. If we are seeing an increase in the number of corruption and mismanagement cases from bureaucrats and politicians, it is inevitable that military will witness scrutiny it, and all other institutions, have never faced before.

The nature of not providing the judgments of court martial proceedings to defendants has already been discussed at length in the apex judiciary of the country. The unwillingness or refusal to provide a copy of the judgment has been deemed to be tantamount to denying fundamental right to justice for it makes it impossible for the convicted to appeal the decisions, for he does not even know the merits and the complete details of his trial judgment. The nature of this denial was brought up before the Federal Shariat Court in Col.(Retd)Muhammad Akram vs State (FSC 44/I/1993). I have read the judgment in detail earlier. I'll just post the summarization available to me online as of now.

Summary of Petition:-

The petitioner filed two Shariat Petitions. In Shariat No.44/I of 1993 he prayed that the constitution of the Court of appeals under section 133-A of the Pakistan Army Act 1952 is repugnant to the Injunctions of Islam and the natural justice as the convict is required to file his appeal against the sentence of HADD, awarded to him by a Court Martial under an Islamic law, before the Court of Appeals, which is to be presided over either by the Chief of Army Staff or by one of his subordinate officer.

Petitioner in Shariat No.4/I of 1993 claimed that vide sections 120 to 123 of Pakistan Army Act. 1952, the findings and sentences by Court Martial are subject to the confirmation by Commander –in- chief or by an officer empowered in this behalf by him. The confirming authority of the trial Courts’ decisions will have the power to hear the appeals against their own/confirmed judgments which is against the principles of natural justice as well as the letter and spirit of the concept of “ADL” &”QIST”.

Judgment of Court:-

The Court held that non supply of copy of judgment, deposition and other record of the case to a convict person/appellant would tantamount to denial of justice to him as he will not be in a position to furnish grounds to assail his conviction in appeal. The Court directed the Federal Government to amend Rules of the Pakistan Army Act 1954 and Pakistan Air Force Act Rules 1957 ensuring supply of judgment, depositions and other record of the case to all the persons to whom sentence has been awarded whether under Hadd or not, except petty punishment cases which may be made subject to revision only.

The Supreme Court has already interpreted the Pakistan Army Act (1952), the Pakistan Air Force Act (1953), and the Pakistan Navy Ordinance (1961) at various times and the nature of appeals and appellate jurisdictions has already been established.

The judgment was never put into effect, the relevant always not amended as per the court's decision and the petitioner sought review from the court again in 2008.

The FSC upheld its earlier decision and gave the Federal Govt 6 months to amend relevant laws.

It's press release read:-

The Federal Shariat Court while disposing of two Shariat Petitions Filed by Col (Retd) Muhammad Akram relating to The Pakistan Army Act, 1952 and Pakistan Air Force Act Rules, 1957 has held that “non-supply of Copy of judgment, depositions and other record of the case to convict person/appellant would tantamount to denial of justice to him as he will not be in a position to furnish grounds to assail his conviction in appeal. Similarly it is his basic right to be heard either in person or through his counsel by the appellate authority. Right of appeal is a substantive right, the denial of copy of judgment and of hearing in appeal would amount to denial of the substantive right resulting into injustice on the touchstone of Quran and Sunnah of Holy Prophet (Peace be upon Him). Accordingly the Federal Government was directed by the Federal Shariat Court to take necessary steps within six months for amendment of Rules of the Pakistan Army Act, 1954 and Pakistan Air Force Act Rules, 1957 ensuring supply of judgment, depositions and other record of the case to all the persons to whom sentence has been awarded whether under Hudood laws or not.”

Read press Release from FSC website:- http://federalshariatcourt.gov.pk/Press%20Release/Press Release _English.pdf

Dawn report:- FSC asks govt to amend Army Act -DAWN - Top Stories; September 03, 2008

APP Report:- Associated Press Of Pakistan ( Pakistan's Premier NEWS Agency ) - FSC directs Federation to amend Rules of Pakistan Army Act to ensure supply of record to appellants

I guess have established the nature of legal interpretation, repeated decisions which sought amendment to relevant acts as they were infringing basic rights of citizens to justice, and repeated denial of the Federal Govt to amend the said laws. The MoD will have to oblige by the FSC judgment and it should.

 

[M8R]

I see nothing wrong with the punishments given by Army Court.You are trained in Army and millions are spent on you so you fight not to sit in your Cantt and wait to fight India only.You should be prepared to fight any internal and external threats.Glad Army is cleansing these type of soldiers/officers who are in Army for $$$ only.Civilian Courts should not mess with Army Internal Matters.It will open a can of worms.

 

[sparklingway]

I see nothing wrong with the punishments given by Army Court.You are trained in Army and millions are spent on you so you fight not to sit in your Cantt and wait to fight India only.You should be prepared to fight any internal and external threats.Glad Army is cleansing these type of soldiers/officers who are in Army for $$$ only.Civilian Courts should not mess with Army Internal Matters.It will open a can of worms.

The problem reported isn't with the punishment rather refusal to provide judgment. If you are found guilty, you are provided a copy of the judgment so as to seek an appeal in the appellate court in a specified time frame. The military does not provide copies of judgments in many cases citing the holy grail of "national security". The failure to give a copy denies fairplay and justice. This has been deemed unconstitutional and UnIslamic by the highest courts in the country.

You misinterpreted the entire post. I guess my hardwork digging into law was of no use.

 

[M8R]

We need these kind of soldiers with high morale who are willing to go anywhere to fight Pakistan's enemies whether they're internal or external.

 

[HAIDER]

When Pak army comes for discipline then its zero tolerance ...its not first ,second or forth time..

 

[Super Falcon]

wellll i dont know what to do for it im 50 / 50 for this they have done wrong and right it is difficullt situation being a muslim to attack jammia masjid no patriotic muslim can do it but at a same time commandos should follow the orders no matter what they are they are tier 1 operators of armed forces and denieng the missions is act of crime to but i still fell that some how they should have given one chance to apply in court for justice

 

[SurvivoR]

I do agree with Super Falcon, however I feel that they won't get what they are seeking. The Army would not want to set a precedent for others to follow. My take on this is that the commandos should have followed the orders and let the burden of sin lie on Gen. Musharraf. However acting according to one's conscience has its own rewards and these commandos are reaping it for now.

 

[sparklingway]

You guys don't seem to get a grasp on the issue. Nobody has questioned the merits of the judgment, the problem is the unavailability of the judgment to them hence rendering an appeal in the appeals court out of question. It has been deemed unconstitutional and repugnant to Islam. There was no need to start debating the nature of their trial.

 

[najamkhan]

i think it was a mistake!

 

[Cent4]

You guys don't seem to get a grasp on the issue. Nobody has questioned the merits of the judgment, the problem is the unavailability of the judgment to them hence rendering an appeal in the appeals court out of question. It has been deemed unconstitutional and repugnant to Islam. There was no need to start debating the nature of their trial.

hi

what I have understood from this that they have not been given the copy of verdict. can somebody tell me what they are going to do if they have one. they wont be able to make any difference.
In army there is no such thing of taking opinion from each individual soldier. its not a political institution there is no such thing as voting junior have to obey the orders.they are trained for that.
for that reason to maintain a discipline they have such rules , which in some peoples point of view are against constitution.
I think media should play a positive role and should not highlight these kind of issue which develop hate in some people regarding army nothing more.
they just want to run HOT stories and earn some money or cheap publicity or other objectives.

 

[sparklingway]

what I have understood from this that they have not been given the copy of verdict. can somebody tell me what they are going to do if they have one. they wont be able to make any difference.

They have the right to appeal against the decision in the Court of Appeals.

In army there is no such thing of taking opinion from each individual soldier. its not a political institution there is no such thing as voting junior have to obey the orders.they are trained for that.
for that reason to maintain a discipline they have such rules , which in some peoples point of view are against constitution.

Lack of providing copy of judgment has been deemed unconstitutional, not the structure. It is not somebody's or some people's views that the non compliance of fundamental right to justice is unconstitutional and Un Islamic as you're saying, rather the judgment (twice) of the Federal Shariat Court. Read the second post and the short court judgments.

I think media should play a positive role and should not highlight these kind of issue which develop hate in some people regarding army nothing more.
they just want to run HOT stories and earn some money or other objectives.

Highlighting denial of justice is necessary.

 

[MastanKhan]

Hi,

If the constitution says that the millitary has the right to refuse---then they are right.

If the judge forces them to give the evidence---the millitary can still refuse---declaring national security issues---the judge may not be qualified to view national security material.

So when you serve in the millitary, there is not much choice. To refuse a direct order of deployment at time of war or insurgency, constitutes close to treason and dereliction of duty. There is no recourse once the judgement is passed---there should be no recourse in civilian court.

 

[sparklingway]

Mastan you again misinterpreted the issue. There has been no challenge whatsoever to the judgment handed out rather the refusal to provide them a copy of the judgment so that they can utilize their legal right to an appeal. The Court of Appeals is a military court, not a civilian court either (unlike other common law countries). A constitutional petition can challenge a law not a specific judgment. Two FSC judgments have deemed refusal to provide copy unconstitutional. Matter has been settled. Convicts have to given copy of the judgment, as simple as that.

 

[Creder]

Well there are certain things to be considered that make this a special case

1. Most important fact is that Musharraf's regime had hit an all time low and so had the image of army among public. While the big generals in their mighty mansions were happy supporting Musharraf, soldiers were losing morale due to the alarming mistrust between public and the army. That was one of the biggest concern for Kayani and that is exactly why as soon as he took office his first priority was adressing these concerns and reviving army's image

2. Musharraf was an American stooge and he pretty much turned the army into a bunch of mercenaries for the Americans therefore it can be understood why the officers questioned there superiors

3. Soldiers are humans, they aren't machines.. They have a conscience and a right to think for themseleves.. An order to lay waste to a masjid and that too by a commander notorious for US buttlicking.. who wouldn't second guess that ?

4. Give em atleast a chance to defend their honour

5. We want soldiers who want to protect their country not because they are ordered to. And to make that happen army has to be fighting for the people and by people I mean us Pakistanis not Washington.