PESHAWAR: The Peshawar High Court bench, which recently acquitted 196 people convicted by military courts for terrorism, has ruled that those courts had violated the Pakistan Army Act and rules by not providing the accused with the counsel of choice.

In the 426-page detailed judgment, a bench consisting of Chief Justice Waqar Ahmad Seth and Justice Mohammad Naeem Anwar ruled that the convictions in those cases were made despite having no evidence of the accused’s involvement in terrorism and that they’re based on malice in law and facts.

It ruled that while exercising their power of judicial review in light of the judgments of the apex court, it accepted all petitions, set aside the impugned convictions and sentences being based on malice in law and facts as well and resultantly, respondents (federal and provincial governments) were directed to free all convicts and internees if they’re not required to be detained in any other case.

“The way all convicts have been proceeded right from their arrest from different parts of the country, in the custody of the agencies and landing them in the Internment Centres for months/ years, are not appreciated at all for the purpose of convictions,” it ruled.

On June 16, the court had accepted 198 petitions filed mostly by close relatives of the military court convicts against the sentence of death or life imprisonment over different acts of terrorism.

Detailed judgment says accused not provided with counsel of choice

Referring to the government’s objection that the court had no power of judicial review in such cases, the bench had also pointed to the judgment of the International Court of Justice in the Indian spy Kulbushan Jadhav case, wherein the 2018 judgment of the high court to acquit 75 terror suspects convicted by military courts.

“Record suggests that the respondents/ federal Government/ Ministry of interior while taking advantage of the said judgment for the purpose of judicial review, relied upon it in the case of Kulbhushan Jadhav, before the International Court of Justice and acknowledging judicial review powers of the High Court, The International Court of Justice directed the accused of that proceeding to avail the same remedy before judicial hierarchy, in Pakistan,” it observed.

The bench added that in a number of cases, the detainees/convicts had been taken into custody from other parts of the country except Fata and Pata and were confined for months and years.

It observed that the government had failed to convince the court about how the army personnel could arrest and pick a civilian from settled areas without the connivance of police and home department.

“Military authorities in the presence of the Constitution are neither prosecutors nor having any authority, whatsoever, to arrest a person directly from the settled area.

“The proceedings/ trial conducted by Field General Court Martial (FGCM) without affording the opportunity of availing counsel of petitioner’s/ convict choice was violative of Article 10 and 10-A of the Constitution,” it ruled.

The bench added that a trial without counsel couldn’t be held to be a fair trial in view of a Supreme Court judgment (2012 SCMR 1610).

It ruled that the FGCM was required to follow the same rules of evidence which were followed by the criminal courts of country and any violation of settled principles of law would cast upon the whole trial adversely.

The high court observed that in the case reported as 2017 SCMR 1249, with reference to military court cases, the apex court had held that courts must ensure that the prosecution has duly informed the close family members of the accused under detention about his involvement in a criminal case so that he may be able to communicate with them and seek assistance in hiring a counsel of his choice with whom he can communicate in order to seek legal advice.

“The treatment meted out to the convict/ petitioners/ accused is a flagrant disregard of the constitution guarantees as established under articles 4, 5, 9, 10, 10-A, 13 and 25 of the Constitution,” it ruled.

The court observed that during custody by the army authorities, the petitioner/ convict was kept out of touch with the world outside and his family, parents or counsel were not allowed any access till the sentence awarded.

It added that the relevant rules in the Pakistan Army Act Rules dealing with provision of allowing counsel for defense of under trial accused before a court martial, were not complied with.

The bench observed that it was the duty of court of law to look into the matter especially on the touchstone of fundamental rights and that as prosecution, investigation, judge and jury were all in one uniform.

“The confessional statements so recorded are at very belated stage when the accused-convict was in clutches of the Internment Centres authority for months to years without any access to other individual/ civilian.

The so-called legal assistance provided by the uniform authorities is only at the stage of court proceedings and that too of a professional with no experience/ way of communication i.e total difference of language,” it observed.

The bench also referred to the geopolitical situation and observed that the situation created by miscreants in reference to Pak-Afghan conflict was an open secret that Mujahideen were patronised by the then government in the name of foreign policy and with the change of situation, circumstances and global politics, some of them failed to respond positively and as such were declared fasadies.

“When seen in this perspective and the norms of the society the punishment so awarded in majority of the cases is too harsh,” it observed.

Published in Dawn, July 11th, 2020