Pakistan’s Supreme Court affirmed the convictions of two former army leaders involved in the overthrow of former Prime Minister Benazir Bhutto’s administration in 1995.
The court’s judgement, issued on Tuesday, was based on an interpretation of the Pakistan Army Act, which allows for alternative charges and offences to be punished.
Chief Justice Umar Ata Bandial, along with Justices Munib Akhtar and Sayyed Mazahir Ali Akbar Naqvi, were part of a three-member bench that delivered the verdict in the case involving two ex-army officials, Colonel (retd) Muhammad Azad Minhas and Colonel (retd) Inayatullah, who were accused of plotting to wage war on Pakistan and destabilise a democratic government.
Col (retd) Minhas and Col (retd) Inayatullah had earlier contested their convictions in the Lahore High Court and Supreme Court in 2015 and 2000, respectively.
The former appealed the LHC’s 2015 decision dismissing his petition challenging his conviction, while the latter appealed his sentence to the Supreme Court.
However, their appeals were denied. After hearing both appeals from 2020 to 2022, the Supreme Court deferred its decision.
Justice Naqvi, in a 17-page judgment, stated: “Section 111(5) of the Pakistan Army Act and Rules 21(4) and 51(7) and (8) speak about the framing and punishment of an accused under an alternative charge or offence.”
According to the charge sheet, both the appellant and petitioner were charged not only with the primary offence but also with other charges and offences.
“It is now well settled that if an accused is charged with one offence but the evidence suggests he committed a different offence for which he could have been charged under the same provisions of law, he may be convicted for the offence he is found to have committed, even if he was not charged with it,” the court stated.
The court remarked in this case that the appellant and petitioner were charged with both the primary offence and alternative offences, as evidenced by the charge sheet.
The court ruled that, after assessing the prosecution’s evidence, all courts found inadequate proof of the main offence but sufficient evidence to sustain their conviction on the alternative charge.
Regarding the objection to the charges, the judgment stated: “Needless to mention that when the appellant or petitioner had filed constitutional petitions before this court in the year 1996, although charges had been framed at that time, they never raised this objection before any court, including this court, at that juncture of time as to why they had been charge-sheeted for the alternative offences.”
The court went on to clarify that the appellant and petitioner had filed petitions in 1996 under Article 184(3) of the Islamic Republic of Pakistan’s Constitution challenging their arrest, custody, and trial by the Field General Court Martial. Their requests, however, were denied on May 14, 1996.
Following their trials, they were discharged from service and sentenced to harsh imprisonment for two and four years, respectively, in an order dated September 30, 1996.
The Chief of Army Staff affirmed their conviction in an order dated October 28, 1996. On November 6, 1997, both persons filed appeals, which were also dismissed.
The court also addressed the Supreme Court’s authority under Article 184(3) of the Constitution, contrasting it with the power granted to high courts under Article 199 of the Constitution.
It noted earlier decisions and stated that people’ fundamental rights are guaranteed and that violations can be addressed through the courts.
The court noted that under the Pakistan Army Act, 1952, punishments awarded by a court-martial or another venue are open to judicial review solely on grounds of mala fides, including malice in law, lack of jurisdiction, or coram non judice.
In the absence of mala fide on the part of the prosecution, the court decided that the appellant’s and petitioner’s convictions and sentences by the Field General Court Martial could not be considered coram nonjudicial.
Concerning the timing of their challenges, the court noted that petitioner Inayatullah Khan had disputed his conviction after more than three years, while appellant Muhammad Azad Minhas had challenged his conviction after more than 13 years.
The court determined that the appellant and petitioner could not claim benefits after being dismissed from service because their termination was the result of defiance of discipline and institutional orders. As a result, their accusations of double jeopardy were without legal support. Given the foregoing, the appeal and constitutional petition were dismissed for lack of merit.