A RECENT judgment of the Supreme Court of Pakistan through which a petition of two ex-army officials was dismissed has diminished the hopes of scores of persons including former personnel of armed forces who have been convicted after being court-martialled on different charges. These convicts also include 12 prisoners who have been on death row after being convicted in the two cases of attacks on former president General (retd) Pervez Musharraf in Dec 2003. Several of such convicts have presently been detained at different prisons across the country. Some of these affected convicts have said that they had attached a lot of hope to the present independent judiciary, but the judgment delivered on July 16, 2010, had now created various doubts in their minds.

The said petition was filed by Lt-Col (retd) Khalid Abbasi and Lt-Col (retd) Abdul Ghaffar, stating that they were detained for a period of 21 months and then expelled from Pakistan Army after being court-martialled on charges of misconduct during tenure of General Pervez Musharraf. The two then decided to move the Supreme Court against their dismissal.

A three-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry dismissed their petition observing the court had no jurisdiction under the Constitution to hear appeals against army courts. The bench also referred to one of their recent judgments in similar nature of case wherein the court had ruled that under Article 199 of the Constitution it had no jurisdiction to entertain plea of ex-personnel of armed forces against their conviction by a court-martial.

Under Article 199 (1) of the Constitution a high court may issue an appropriate order, if it is satisfied that no other adequate remedy is provided by law, on the application of any aggrieved party. However, Article 199 (3) bars the jurisdiction of superior courts in entertaining pleas of the personnel of armed forces or persons who are subject to laws related to armed forces.

The said clause states: “An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those armed forces, in respect of his terms and condition of service, in respect of anything arising out of his service or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.”

In the first life attempt on General (retd) Pervez Musharraf, which took place near Jhanda Chichi Bridge at Rawalpindi on Dec 14, 2003, six personnel of Pakistan Air Force (PAF) were convicted by a field general court-martial (FGCM) in a clandestine manner on Oct 3, 2005, at PAF Base Chaklala after they were kept in illegal detention for over 20 months. Five of them -- ex-junior technician, Adnan Rashid, ex-chief technician Khalid Mehmood, ex-senior technician, Karam Din, ex-corporal Nawazish and ex-junior technician Niaz Muhammad -- were sentenced to death whereas the sixth one, Nasrullah, a junior technician, was sentenced to life imprisonment.

Their appeal was dismissed by a PAF Appellate Court in Feb 2006. Later on, their petitions were dismissed by the Lahore High Court on March 28, 2006. Against that judgment they filed appeals before the Supreme Court and a three-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry rejected the same on Sept 25, 2006. The bench held that under Article 199 of the Constitution, civil courts had no jurisdiction to issue writ against orders passed by military courts.

Presently, review petitions of these convicts against the Sept 2006 verdict are pending before the Supreme Court. The appellant believe that being a free judiciary the apex court should entertain their appeals on merit instead of dismissing the same on technical grounds.

A soldier of Pakistan Army, Abdul Islam Siddiqui, who was separately tried in the same case by a court martial, has already been hanged on Aug 20, 2005.

Similarly, seven persons are on death row in the second attempt on life of General Pervez Musharraf which took place on Dec 25, 2003, in Rawalpindi. Apart from them there are several other personnel of armed forces who have been convicted on different charges including their refusal to participate in different military operations.

Legal circles believe that the execution of Mr Siddiqui on charges of attempted murder was unjustified and the apex court should now intervene to save the lives of several others who were sentenced to death by the military courts.

One of the condemned prisoners, Adnan Rashid, in an open letter to the chief justice of Pakistan, stated that their only crime was that they had voted against General Pervez Musharraf in the 2002 referendum following which they were framed in a cooked up case at Jhanda Chichi. He claimed that at the time of said occurrence he was on duty in Quetta and was picked up by personnel of an intelligence agency on Jan 9, 2004.

Mr Rashid, who is in a death cell at Haripur Central prison, questioned that when the Supreme Court could assume jurisdiction in several other cases wherein its jurisdiction was curtailed by the Constitution then why not the cases of personnel of armed forces could be heard by the court.

He added that presently the apex court had been haring cases against the 18th Constitutional Amendment, whereas under the Constitution it could not be challenged before the court. In similar manner, he added, their cases may also be entertained and they should be provided justice.

The condemned prisoner said that in past the superior courts had assumed jurisdiction in different cases related to armed forces and they expected that they would also get justice. However, the recent judgments had made them upset.

Another prisoner, who was convicted by a military court for declining to join the military operation in Swat last year, said that he was deprived of his right to fair trial. The prisoner, who did not want to be identified, said that he had not been provided the documents on the basis of which the trial was conducted, then how could he defend himself before the court martial?