Field General Court Martial provides limited space to examine mala fide behind prosecution

Published June 7, 2021
In such cases the high court should not attempt to search for “a contra view of evidence” competently recorded during the court martial, the judgement said. — Photo courtesy SC website/File
In such cases the high court should not attempt to search for “a contra view of evidence” competently recorded during the court martial, the judgement said. — Photo courtesy SC website/File

ISLAMABAD: The Supreme Court has reiterated an earlier ruling and held that the findings of a Field General Court Martial (FGCM) have a very limited space to explore hypothesis of any mala fide lurking behind the prosecution or that its proceedings were without jurisdiction.

“The parameters authoritatively settled by this Court to examine the vires of a finding/sentence recorded by a Court Martial provide a limited space to examine hypothesis of any mala fide lurking behind the prosecution or any juridical flaw in holding of the Court Martial that may be viewed as coram non judice or without jurisdiction,” observed Justice Qazi Muhammad Amin Ahmed in a five-page judgement he has authored.

In such cases the high court should not attempt to search for “a contra view of evidence” competently recorded during the court martial, the judgement said.

Justice Ahmed was a member of a three-judge Supreme Court bench headed by Justice Mushir Alam that had taken up an appeal by Lt Asim Bashir against the Jan 26, 2018 judgement of the Lahore High Court.

SC rules on Lt Bashir’s appeal against a judgement of the Lahore High Court

To substantiate its viewpoint, the court’s order cited a number of previous judgements and observed that official acts, protected by statutory presumption of being intra vires, cannot be readily branded as being actuated by considerations tainted with mala fide.

Justice Ahmed emphasised the exercise of jurisdiction by the functionaries of the republic, vested in them by law, to accomplish a statutory purpose, adding that these deserve full faith and credit.

“Contra allegations must qualify falsification test on the strength of material capable of objective verification; a bald accusation merits no consideration,” the judgement said, adding that the officers who carried out the exercise did not appear to have an axe to grind and conclusions drawn by them were irresistibly based upon the preponderance of evidence and that they by virtue of their ranks validly constituted FGCM.

“Thus the allegation of coram non judice is nothing than a far cry in circumstances,” Justice Ahmed observed. The view taken by the Judge-in-Chamber of the high court was in accord with the law and called for no interference.

While representing the petitioner, S.A. Mahmood Khan Saddozai had contended during the hearings that the FGCM was not convened at the proper venue as contemplated by provisions of the Pakistan Army Act, 1952 as the petitioner had since been transferred to another station.

Thus the entire exercise was a “nullity in the eye of law”. Also, the offence was of a civil nature, a position confirmed by separate trial of petitioner’s mother, namely Nigar, in regular jurisdiction. Moreover, the convening officer could not have remitted the case for reconsideration of the evidence and thus the entire exercise suffered from the taints of mala fide and being coram non judice and, therefore, liable to be set aside, the counsel had contended.

The petitioner was accused of attempting to murder Naveeda Gohar, aged 24/25, on Feb 4, 2010. The incident was reported to police by her husband Major Syed Afaq Ahmed, who along with the petitioner also named his mother as suspect.

The injured breathed her last on Feb 23, 2010. The DNA profile was found to be compatible with the petitioner’s specimens to conclusively confirm the carnal liaison. The refusal of proposal by the petitioner, prior to deceased’s marriage with the complainant, was cited as motive for the crime.

The petitioner was taken into custody by the army authorities the same day and was presented before the FGCM convened at Bahawalpur Cantonment, where the accused was indicted for homicide and fornication.

Later, the convening authority/General Officer Commanding through its order of Aug 13, 2011, after revisiting the evidence, convicted the accused of homicide and sentenced him to imprisonment for life.

Published in Dawn, June 7th, 2021

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