Justice Azmat Saeed Sheikh of Supreme Court authored the 182-page judgment, saying that at no point of time during the course of trial by the Field General Court Martial (FGCM) or the pendency of the proceedings before the High Court or even before the Supreme Court was any allegation of specific mala fides of fact made against members of the FGCM.
The verdict said the appellants had not proved that the military violated their constitutional rights or failed to follow procedure.
The court after hearing the appeals for two months had reserved the judgment on June 20 as a total of 16 appellants who had filed their pleas through their relatives included Bacha Laiq, Mst Anwar Bibi, Ali ur Rehman, Mst Nek Maro, Said Zaman Khan, Sakhi Muhammad, Sher Alam, Mashooqa Bibi, Ajab Gul, Khan Afsar Khan, Javed Iqbal Ghauri, Mohibullah, Fazal Ghafar, Mst Zarba Khelaw and Aqsan Mehboob, Hafiz Muhammad Sadiq.
"It is not the case of the petitioners that any member of the FGCM either had any personal bias against the convict or established on record that any proceeding or conviction by the FGCM was the result of any evil intention of any member thereof or otherwise conducted in bad faith for a collateral purpose. Therefore conviction and sentence of the Convict cannot be set aside on the ground of mala fides of fact," the verdict said.
Counsel including Asma Jahangir, Abdul Latif Afridi, Khalid Anwar Afridi, Naseemullah Khan, Ahmed Nawaz Chaudhry, Malik Muhammad Akram, Salahuddin Mengal and Ahmed Raza Kasuri had represented the family members of convicts.
Military courts were established after the 21st Amendment in the Constitution and an amendment in the Pakistan Army Act. The court observed that after analyzing the record it seemed that the military courts were established under the Pakistan Army Act, 1952.
The convicts were subject to the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015 and liable to be tried and the offence was triable before the FGCM, hence the proceedings are not without jurisdiction.
The court declared that this is not the case of 'no evidence' or 'insufficient evidence' and the amendment in the constitution and PAA were in view of a particular circumstance.
The judgment noted the convicts were members of religiously-motivated terrorist organization and were involved in attacking the armed forces and the law enforcement agencies and caused deaths of civilians, several soldiers and officials.
The main thrust of the counsel's contention was common in all the civil petitions for leave to appeal as the convicts in the instant cases have been subjected to secret trials without provision to legal assistance. The counsel had contended that their clients were deprived of the right of fair trial and due process of law.
The counsel had pleaded that the Rules of the Pakistan Army Act 1954 were violated to the prejudice to the convicts therefore the convictions were illegal and invalid, adding that the trial was without jurisdiction under section 91 of Pakistan Army Act 1952. They said that no FIRs were registered and the convicts were kept in illegal detention for a year and the proceedings of FGCMs were mala fide attempt to cover up such illegalities.
Counsel were of the view that in view of these "illegalities" the convictions and sentences awarded are without jurisdiction, coram non judice and suffering from mala fides, adding that the counsel had also complained that they were handicapped by the limited access to the record of the trial.
The judgment said that Additional Attorney General Attique Shah had stated that the jurisdictions of the High Court and the Supreme Court are limited to the cases of coram non judice, without jurisdiction and mala fides as the contentions raised do not fall in any of the three categories. It added that the learned law officer had submitted that the FGCMs were established in accordance with the law, adding that the convicts had not only admitted their guilt but also boasted of waging war against Pakistan and killing innocent civilians and members of the law enforcement agencies. He said that Haider Ali was no juvenile at the time of occurrence.
The judgment observed that its larger bench with 11 to 6 did not declare 21st Amendment and PAA not to be ultra vires. It said any proceedings taken, convictions and sentences awarded by the FGCM can be called into question on the ground of mala fides of fact ie being tainted with bias or bad faith or taken for a collateral purpose or inspired by a personal motive to hurt a person or benefit oneself or another.
The verdict added that the mere allegation that an action has been taken wrongly is not sufficient to establish mala fide of facts. Specific allegations of the collateral purpose or an ulterior motive must be made and proved to the satisfaction of the Court.
The court ruled that if there is a fundamental legal flaw in the constitution of the FGCM the action taken thereby would be coram non judice, hence without jurisdiction.
Though the crimes committed by the convicts were triable under Criminal Court, hence constituted a civil offence defined in section 8(3) of PAA, liable to be tried by the FGCM in view of section 59 of PAA, the court noted, adding that no new offence has been created and there was only a change of forum (FGCM). It said that date of occurrence has no real significance.
The court observed that at no point of time after the confirmation of the sentence by the FGCM, was any application filed to the competent authority for supply of the copies of proceedings under Rule 130 of PAA Rules, 1954. The applications were not moved even during the pendency of the proceeding before high court or even before the apex court.
"In the circumstances, we are not persuaded that any prejudice has been caused to the petitioners," says the judgment. The court ruled that when the convict was asked to engage civil defence counsel they replied in the negative therefore a defending officer was appointed in terms of Rule 81 of PAA Rules.
Referring to the power of judicial by the high courts or supreme court, the judgment ruled that it has been clarified that neither the high courts nor the apex court can sit in appeal over the findings of the FGCMs or analyse the evidence produced before it or dwell on the 'merit' of the case.
"The convicts have confessed to their charges before the judicial magistrate," says the judgment, adding that "a perusal of the FGCM record reveals that to ensure fair trial and to protect the rights of the convict the relevant rules were complied with and the summary of evidence had been taken and was laid before the FGCM."
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