ISLAMABAD: The Supreme Court (SC) has rejected a petition challenging the conviction awarded to two junior officers by the Field General Court Martial (FGCM) over their wrongdoing in the armed forces 18 years ago.

Former Hawaldar Fazal Karim and former Subedar Muhammad Anwar had challenged before the Supreme Court the Nov 11, 1999 order of the Lahore High Court’s Rawalpindi bench, which had upheld the conviction awarded to them by the FGCM earlier in the year.

Mr Karim and Mr Anwar were represented by retired Colonel Muhammad Akram and the government by Deputy Attorney General Sohail Mehmood.

A three-judge SC bench headed by Chief Justice Mian Saqib Nisar dismissed the appeals which the two had filed in 2008 on the grounds that the petitioners had failed to establish any malice on the part of the FGCM members, prosecution or the authorities concerned, or that the GGCM proceedings were coram non judice, mala fide or without jurisdiction.

Ex-servicemen were convicted of causing loss to exchequer by issuing fictitious vouchers at army’s supply depot

While dismissing petitions challenging the 21st Amendment to the Constitution, a 17-judge full court of the Supreme Court, in a majority judgement on May 2015, had reaffirmed that any order passed, decision taken or sentence awarded by military courts would be subject to judicial review by the high courts and the Supreme Court on the grounds of being coram-non-judice, without jurisdiction or suffering from mala fides, including malice in law.

The apex court had also held that the decision to select, refer or transfer the case of any accused person for trial under the Pakistan Army Act (PAA) 1952, as amended, would also be subject to the judicial review.

At the time in question, Mr Karim and Mr Anwar were working at the Station Supply Depot of the armed forces in Rawalpindi. They were charged under Section 40(c) of the PAA over the allegations that between May and July 1985, they, in connivance with other persons, they had prepared fictitious vouchers. The vouchers showed an excess quantity of items being drawn from the supply depot than the actual quantities drawn. Thus they were accused of causing wrongful losses to the government exchequer.

Mr Karim and his associates were jointly tried by the FGCM which convicted one of the accused and acquitted the others, including the appellants. But the confirming authority did not agree with the verdict and remanded the case back to the FGCM for reconsideration.

Subsequently, the FGCM reviewed the available evidence and convicted the petitioners. Later on Dec 2, 1991 the confirming authority affirmed the new verdict.

When taken up, the Supreme Court admitted the appeal to consider whether the FGCM had decided the matter on merit or beyond the scope of revision and as such contrary to the established principles of law.

During the hearing, retired Col Akram, appearing on behalf of the petitioners, argued that the FGCM had not recorded any additional evidence when the case was remanded back to it. Therefore, it erred in law in convicting the appellants on reconsideration of the same evidence on the basis of which they were earlier acquitted.

The counsel argued that under the PAA, the confirming officer was required to give his views on the evidence drawing the attention of the court to a particular point they had failed to appreciate. But having failed to give his views on the evidence, the confirming authority wrongfully exercised its powers under the act.

The counsel also argued that in terms of the Army Regulations No.277, the FGCM could be censured if it did not record a conviction on remand by the confirming authority. Thus the FGCM acted under the fear of censure in convicting the appellants, he implied.

But the judgement authored by Justice Ijaz-ul-Ahsan, one of the members of the three-judge SC bench, held the argument that the FGCM could be censured if it did not record a finding, to be unique, unsubstantiated and devoid of merit.

Moreover, it was also not mandatory under the law for the FGCM to record additional evidence in revision and that additional evidence was required to be recorded only if it was so directed by the confirming authority, the judgement said.

“In the absence of a finding that the conviction and sentence was coram non judice, without jurisdiction or mala fide, we are not persuaded to reappraise evidence or examine its sufficiency in exercise of our jurisdiction under Article 185(3) of the constitution,” Justice Ahsan observed. The impugned judgement of the high court was well reasoned and entrenched in the principles of law settled by the SC in its different judgements, he added.

Published in Dawn, June 9th, 2017