SC upholds ex-servicemen's conviction in 1995 coup plot
The Supreme Court on Tuesday upheld the sentences of two former military officers involved in a 1995 conspiracy to overthrow the government of slain former prime minister and PPP chairperson Benazir Bhutto.
A three-judge apex court bench, comprising Chief Justice of Pakistan Umar Ata Bandial, Justice Munib Akhtar and Justice Sayyed Mazahar Ali Akbar Naqvi, dismissed all the appeals in favour of reviewing the sentences of Colonel (retd) Azad Minhas and Colonel (retd) Inayatullah.
The top court observed that the petitions filed by the two former army officers against their conviction were “without merit” and therefore stood “dismissed”.
“The concept of duty/obligation assigned to a military officer does necessarily relate to [the] duty/responsibility assigned for a particular task, as argued before us if accepted correct it would amount to a narrow interpretation regarding responsibilities of members of a disciplined force,” reads the 17-page judgement authored by Justice Sayyed Mazahar Ali Akbar Naqvi.
The Field General Court Martial (FGCM) had sentenced Minhas and Inayatullah to two and four years of imprisonment with hard labour respectively each as well as dismissal from service.
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The two ex-army officers were arrested on September 26, 1995, along with now deceased Maj Gen Zaheerul Islam Abbasi, Brigadier Mustansir Billa and 38 other military officers on charges of plotting to assassinate corps commanders during a meeting to be held on 30th of that year at the General Headquarters in Rawalpindi.
The plan included proclaiming caliphate in the country with Abbasi as Amirul Momineen (leader of the faithful) after assassinating then prime minister Benazir Bhutto , then army chief Gen Abdul Waheed Kakkar, senior cabinet ministers and military officers.
The SC rejected Abbasi’s appeal filed in 1997 against the seven-year jail term awarded to him by the FGCM.
The FGCM also awarded a 14-year prison term to Billa for his involvement in the conspiracy.
Minhas and Inayatullah’s petitions against their sentences were earlier rejected by the Lahore High Court. The two former army officers had approached the SC in 2016 following the LHC's rejection.
“A military officer of either of the rank is under bounden duty to execute momentary obligations assigned or not in order to uphold dignity, reputation, discipline and above all maintain order of the institution in letter and spirit. Any act or omission, which hampers integrity/discipline of the institution would definitely be accountable considering it an act triable under the Army Act," the judgment adds.
"As far as the maintainability of the petitions is concerned, though this Court in a number of cases has already held that Article 199 (3) of the Constitution of Islamic Republic of Pakistan clearly ousted the jurisdiction of High Courts from making an order in relation to affairs of matter of a person who is member of the Armed Forces of Pakistan, or who is for the time being covered by any special law relating to any of such forces, or in respect of any action taken in relation to such person as a member of the Armed Forces, or a person subject to such law and under this clause of Article 199(3) the jurisdiction of the High Court if assailed is barred with reference to the conviction or sentences recorded by the Field General Court Martial. However, a view contrary to earlier stance has now developed, which is recent in all fairness that the superior Courts have jurisdiction to interfere in the orders of the authorities relating to the Armed Forces if the same are found to be either result of mala fide or the same are coram non judice."
“In absence of any mala fide on the part of the prosecution, the conviction and sentences awarded to the appellant/petitioner by the Field General Court Martial cannot be stamped to be coram non judice, which otherwise is a rare phenomenon, therefore, it can safely be said that the Constitutional petitions filed by the appellant/petitioner either before this Court or before the High Court in the given circumstances as disclosed in detail were not maintainable."
The verdict, reserved by the SC in February last year, stated that the two former officers had argued that it was mandatory for the prosecution to prove the main offence of “conspiring to wage a war against Pakistan” before starting a trial against them on another charge.
It added that the additional attorney general contended that any person charged during court martial with any offence punishable under Section 59 of the Army Act might be found guilty of any other one.
“All courts after evaluating the evidence led by the prosecution found that the main offence could not be proved against them but as there was sufficient evidence to sustain their conviction under the alternative charge, hence, they were convicted accordingly,” the judgment read.
The petitioners further argued that the principal charge framed under the Pakistan Army Act, 1952 lacked “jurisdiction” and was “illegal” as it exclusively related to “misconduct or omission committed on the basis of assigned military duty”.
They added that their court-martial was based on “mala fide” as the FGCM lacked the jurisdiction to issue the order and so it was “not sustainable in the eyes of law”.
However, the additional attorney general argued against this claim.
“During [the] course of interrogation, the accusation against them [petitioners] was found to be correct and as such they were rightly dealt with under the law on the subject and as such their argument that the action taken by the authorities in pursuance of the material collected and the proceedings before the court constituted under Pakistan Army Act, 1952, may be declared to be based upon mala fides has no legal justification,” the SC verdict read.
It added that the petitioners’ argument of that their trial before the FGCM was an abuse of process has “no sanctity” and it was “vehemently discarded”.
The court noted that if it accepted the petitioners’ argument that the concept of duty or obligation assigned to a military officer did not necessarily relate to duty or responsibility assigned for a particular task, it would amount to a “narrow interpretation” regarding the responsibilities of the members of a disciplined force.
“A military officer of either of the rank is under a bounden duty to execute momentary obligations assigned or not, in order to uphold the dignity, reputation, discipline and above all maintain order of the institution in letter and spirit. Any act of omission, which hampers integrity/discipline of the institution would definitely be accountable considering it an act triable under the Army Act,” the verdict added.
The SC also termed the petitions filed by the two former army officers in the SC and high court as “not maintainable”.
It observed that the petitioners were unable to provide a sufficient reason as to why they remained silent for years and did not invoke the constitutional jurisdiction well in time, therefore, on this score alone, their constitutional petitions are liable to be dismissed.
On the petitioners’ contention against them being deprived of privileges and amenities meant for army personnel, including membership in the housing scheme and allotment of plots, the SC observed it was settled that “dismissal from service squarely takes away all the perks, privileges and amenity services from an army personnel conferred in lieu of his induction into the Pakistan Army”.
The court noted that the petitioners’ argument that taking away these privileges and amenities from them made them a “victim of double jeopardy” – meaning that no person shall be prosecuted or punished for the same offence more than once -- lacked any “legal foundation” and was “immensely rebutted”.