• Justice Hilali asks which of Ahmad Faraz’s poems landed him in jail
• Accused cannot be handed over to military unless charge read out, CB told
• Counsel terms reasons given by ATC for transfer of accused ‘ridiculous’

ISLAMABAD: The military detention of celebrated poet Ahmad Faraz during Gen Ziaul Haq’s martial law was referenced on Thursday before the Constitutional Bench (CB) hearing appeals against the military trials of civilians, when Justice Naeem Akhtar Afghan noted that in the era of social media, the defence adopted by the poet would not have held water.

“Ahmad Faraz had adopted the plea before the Lahore High Court (LHC) upon arrest that he had no other resource to communicate his poetry, but the same plea would not have been available if taken in the age of social media,” observed Justice Afghan, in a lighter vein.

Headed by Justice Aminuddin Khan, the seven-judge bench had taken up a set of intra-court appeals against the Oct 23, 2023, five-judge order of nullifying the trial of civilians by military courts involved in the May 9 violence.

Justice Afghan observed that during the proceedings before the high court the poet had contested that the poem was written by him, but Justice Muhammad Afzal Zullah, who was heading the LHC bench, had observed that he had written a poem that expressed the feelings of a soldier.

The observation came when Faisal Siddiqi, who was representing civil society, cited the 1977 LHC case to substantiate his contention that an accused becomes subject to the Pakistan Army Act (PAA) 1952 only when the charge is read out before handing him over to military authorities.

The poet was charged with reciting a poem to an army officer, and later handing over a typed copy with the alleged intention to seduce the officer into rebellion. The LHC, however, had ruled that Faraz was not subject to the PAA and ordered his release forthwith.

“Which poem landed Ahmad Faraz in jail, since all his poems have been learnt by heart,” wondered Justice Musarrat Hilali, recalling how she used to make a lot of fuss as a lawyer in the Bar whenever she lost a case.

“I used to say that judges are like truck drivers, they signal to one direction but turn the opposite way,” Justice Hilali observed, suggesting the counsel pick up what she was saying.

When Justice Syed Hasan Azhar Rizvi wondered, in jest, whether Justice Hilali also drove a truck, she replied in the affirmative, adding that her father was a freedom fighter who had spent a major chunk of his life in prison.

The poetry her father used to write was read by someone at a Pashtun jirga after his death and the one who recited the poem was arrested.

The counsel then cited the application of commanding officers seeking transfer of the custody of the accused. The applications began with words that initial investigation constitutes an offence under the Official Secrets Act, 1923.

These words are an admission that the investigation had not yet been completed, the counsel contended, adding that the reasons given by the anti-terrorism court (ATC) for the transfer of the accused were ridiculous.

He emphasised that by ordering the transfer the ATC’s administrative judge had declared the accused guilty, adding that when the investigation had not yet been completed the administrative judge had no such authority.

Under Section 59(1) of PAA, the custody of only military officers can be sought from the civil court if they were involved in murder and any other crimes, contended Mr Siddiqi.

He said the detention of the accused was possible only when he becomes subject to PAA. Thus, he added, unless formal charges were framed the accused cannot be court-martialled.

The CB will now resume hearing the case on Monday.

Published in Dawn, February 28th, 2025