Gill should be tried in military court: PM’s focal person

Legal expert says civilians can’t be arrested and tried under military law

Rizwan Shehzad   August 13, 2022


Prime Minister Shehbaz Sharif’s focal person on digital media and technologies Ahmad Jawad has proposed that the PTI leader Shahbaz Gill – who on Friday was remanded in judicial custody — should be tried in a military court for inciting mutiny in the army.

The prime minister's aide, who was recently appointed to fight the battle of narratives and counter PTI on social media, said that the army should initiate the process as “a window has opened up” and “there is no harm to explore possibility under the law to try Shahbaz Gill in a military court".

“The filth we have seen in the past few months from Shahbaz Gill cannot be accepted,” Jawad shared with The Express Tribune. “It’s not politics…it’s not freedom of expression…its sedition and an attack on the solidarity of the country. It must be tried under the law and [he] should be tried in a military court if the law permits.”

Jawad while repeatedly emphasising that he was no legal expert and it was only his personal view said that “clear and vicious attempt of dividing the military is a most serious crime. If not taken to task, this could lead to further serious repercussions for the solidarity of the country".

'Civilians cannot be tried under military law'

A debate concerning the trial under military court started after PM’s focal person tweeted that a civilian can be court-martialed under Section 31-D of the Pakistan Army Act of 1952, claiming that senior politician Javed Hashmi was sentenced under the army act and why can’t Gill be sentenced under the same.

However, a renowned lawyer and a former military officer who served in the Pakistan Army, Col Inamul Rahiem said that “civilians can’t be arrested and tried under The Pakistan Army Act of 1952 because the procedure of arrest is missing from it".

The legal expert also clarified that Hashmi was never tried under the army act, saying he was tried under the Pakistan Penal Code (PPC) even when military ruler Gen (retd) Pervez Musharraf was in power.

According to a news report, a district and sessions court in Islamabad had sentenced ARD president Javed Hashmi to 23 years in prison and fined him Rs42,000 for inciting mutiny in the army. Hashmi was convicted on seven counts, with a maximum of seven years on one count, running concurrently.

Rahiem, who has long been fighting the legal battle for the recovery of missing persons and against the administrative orders of the armed forces, said that a civilian can’t be arrested and tried without amending the Constitution, saying the Supreme Court has already ruled it in his own case.

He was picked up by the military authorities from his residence in Rawalpindi on Dec 17, 2019, and later the apex court declared his detention illegal and unlawful.

The retired colonel, who had also served as a lawyer in the military’s Judge Advocate General branch, said that under the original army act only those civilians could be tried under the army act who were employed in operational areas, saying that too only to the extent of the provisions of the Official Secret Act of 1923.

Under the law, Rahiem said, an army officer can be tried in a civilian court but not vice versa, adding the army can request the civilian court to transfer the trial of the accused to a military court.

He said that the military dictator Ayub Khan had amended Section 2(1)(D) of the army act to try civilians under the army act after the 1965 war where spies and anyone inciting mutiny could be arrested and tried in military courts without having the right to appeal in higher courts.

“Such a law allowing the army to try civilians doesn’t exist anywhere in the world,” he said.

With the passage of time, he said, the courts have not only questioned but ordered release of civilians, including renowned poet Ahmed Faraz, who were arrested under the army act. He said the case of Hasan Askari, the son of a retired major general, who was sentenced to five years for his criticism over the army chief's extension, was pending before the capital’s high court on this very question that a civilian can’t be tried under the army act.

The information minister as well as PTI leaders could not be approached for their comments on the matter.


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