THE recent hearing by the Supreme Court of two petitions seeking amendments to the Pakistan Army Act 1952 has brought this six-decade old law into media focus. The apex court has directed the federal government to consider amendments in the Army Act so as to remove certain inconsistencies related to provision of key documents to a person convicted by a court martial.

While the superior courts including the Supreme Court and the high courts have normally not been providing relief to the convicts under the Army Act as well as under the laws related to Pakistan Air Force and Pakistan Navy, on Nov 13 a three-judge bench of the Supreme Court took up for hearing two petitions requesting amendments in the Army Act.

According to media reports the bench of the Supreme Court took up for hearing the petitions filed by Col (retd) Mohammad Akram seeking amendments to the said act including provision of reasons to a convict for the verdict so that he could properly file appeal against his conviction.

It was reported that the army authorities in reply to these petitions have opposed any amendment in the Army Act observingthat it was a special law and that any attempt to bring it in line with the general law was to defeat the very purpose of that verylaw.

These petitions have assumed importance especially after the insertion of Article 10-A into the Constitution of Pakistan through Constitution (Eighteenth Amendment) Act, 2010, as it guarantees every citizen the right to fair trial and due process.

From time to time cases have been coming before the superior courts wherein convicts under the Army Act have challenged their convictions on the basis that they had not been provided opportunity of fair trial. The counsels appearing in these cases have always complained of concealment of important facts during the trial and non-provision of relevant documents.

One of the lawyers appearing in such cases believes that appearance before a court martial was only waste of time as he faced handicap in defending his client due to lack of provision of important documents attached to the trial.

The counsel, who did not want to be identified, had also appeared for an accused before a field general court martial trying some accused persons charged with the attack on General Pervez Musharraf in Dec 2003. He said that during the trial he had to visit the Attock Fort but was not provided the relevant documents.

He added normally he was provided the case file with a few documents inside the fort on the spot and was not allowed to take away those documents for preparing the case in advance. He added that the said trial could not be termed a fair trial by any standard of law.

The first life attempt on General Pervez Musharraf took place near Jhanda Chichi bridge in Rawalpindi on Dec 14, 2003, wherein 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 were sentenced to death whereas the sixth one was sentenced to life imprisonment.

Their appeal was dismissed by a PAF Appellate court in Feb 2006. Later, 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 Mohammad 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. Later, their review petitions were also dismissed by the court.

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

Similarly, seven persons are on death row for the second attempt on life of General Pervez Musharraf which took place on Dec 25, 2003, in Rawalpindi.

Recently, father of an ex-army soldier on death row has sent a letter to the Chief Justice Iftikhar Mohammad Chaudhry requesting him to take notice of the conviction of his son by a FGCM and subsequent dismissal of his appeal without fulfilling requirement of a fair trial.

The convict, Sikander Ali, who was participating in a military operation in South Waziristan in 2009, was convicted by the FGCM on Dec 26, 2009, for killing his fellow soldier Hawaldar Khadim Hussain. Subsequently, his appeal was also dismissed by the army court of appeal on Dec 10, 2010. Father of the convict, Mohammad Ali, hailing from Sindh has requested the chief justice to order re-trial of his son.

“I had given several applications to the court of appeal requesting for provisions of important documents related to the trial including the FIR, impugned judgment of the FGCM, recorded evidence of witnesses, etc but I was not provided the same and instead they were told that his appeal was dismissed on Dec 10, 2010,” said Mohammad Zulfiqar Khalil, counsel for the convict.

Another counsel, who represented a civilian convicted by a court martial for spying, said he had to file a petition before the high court as after conviction his client was not even provided copy of the judgment. He added that he was also not provided appropriate relief by the high court. He said that just like mentioned in the Code of Criminal Procedure a convict by a court martial should be handed over the judgment at the time of his conviction so that he could file an appeal.