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Lal Masjid commandos seek Supreme Court’s intervention

08 June, 2010

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ISLAMABAD: Two Army commandos of Zarar Company, who had allegedly opposed the Lal Masjid operation in 2007 and were subsequently court-martialled, have been denied the right of appeal in superior courts.

The Judge Advocate General (JAG) Branch of the Pakistan Army has also refused them copies of the verdicts, considering it as “prejudicial to the safety and interests of the State”. Lance Havaldar Ghulam Ahmad, ex-Army number 3260368, and Sepoy Shahid Shehzad, ex-Army number 3261567, were arrested allegedly for opposing the Lal Masjid operation on May 2, 2007, two months before it was launched.

They were kept in solitary detention for 15 months before they were court-martialled in August 2008, sentencing Ghulam Ahmad to 14-year rigorous imprisonment and Shahid Shehzad to seven years, said an application sent to the Chief Justice of Pakistan. “That the applicant wants to challenge the controversial verdict of unjustified punishment delivered by Field General Court Martial before the honourable High Court but JAG Department of GHQ has denied the copy of proceedings and judgment,” Ghulam Ahmad has written to the Chief Justice.

The convicts were under the subordination of Lt. Col. Haroon, who later died in the Lal Masjid operation. The News sent the ISPR a list of nine questions relating to the Army’s justice system besides the cases mentioned in the report. The ISPR offered ‘no comment.’

According to details gathered from family sources and others related to the case,

Ghulam Ahmad was averse to the idea of operation and informally discussed his thoughts with colleagues. As the word travelled to the chief of the Zarar Company, Ghulam Ahmad was taken into custody, allegedly tortured and detained in Attock Fort. Shahid, who held the same views, was the next to face arrest.

But as they were brought out of the Fort for trial, a Colonel-rank officer allegedly asked them to submit a statement before the court that they were in contact with the Lal Masjid administration and updating them about the operational detail, a family member of Ghulam Ahmad told The News. They were badly shaken after spending 13 months in the Attock Fort, totally disconnected with their families. The Field General Court Martial sentenced them to rigorous imprisonment of 14 years and seven years respectively to Ghulam Ahmad and Shahid Shehzad. The Army court of appeal upheld the verdict.

They are not the first being denied the right of appeal in a superior court. Abdul Islam Siddiqui, a soldier of the Pakistan Army hanged in 2005 after an in-camera military trial for his alleged involvement in the December 2003 attack on former president Pervez Musharraf’s convoy, was reportedly also denied the right to file a writ in any superior court.

Five other convicted, Lt. Col. Abdul Ghaffar, Lt. Col. Khalid Mehmood Abbasi, Lance Havaldar Arif Hussain Shah, Sepoy M. Afzal and Assistant Warrant Officer Safdar Ali, have also been denied proceedings on the same grounds in the recent past. Lt. Col. Ghaffar was released in 2006 after completing three-year sentence apart from dismissal from service delivered by court martial. Lt. Col. Khalid, jailed for six months besides dismissal, has also completed his jail term.

According to Pakistan Army Act’s section 133-A and 133-B, the decision of the Army’s appellant court ‘shall be final and shall not be called into question before any court of authority,’ Col. (retd) Akram, a lawyer who appeared before the court martial, wrote in the petition filed before the court, challenging the discriminatory Army Act. He has challenged these controversial clauses in the Supreme Court since 2004 but the petition is yet to be taken up by the apex court.

Contrary to civilian appellant courts that can only confirm or commute sentences, the Army’s appellant courts can enhance sentences as well. For example, an accused in Pervez Musharraf’s attack case, Rana Naveed, was granted life sentence by the court martial but the Army’s appellant court converted it into death sentence.

Below is a list of questions that was returned by the ISPR, offering no comment.

1) Lance Havaldar Ghulam Ahmad (ex-Army Number 3260368) and Sepoy Shahid Shehzad (ex-Army Number 3261567) were court-martialled allegedly for their views averse to the Army’s decision of waging operation against Lal Masjid clerics. Now when they have been awarded sentence and the Army’s Court of Appeal confirmed it, they want to move a civil court of appeal but have been denied copies of the Court Martial proceedings ‘being prejudicial to the safety and interest of the state’. Is it true?

2) Five others convicted namely Lt. Col. Abdul Ghaffar (WP No. 2614/2009), Lt. Col. Khalid Mehmood Abbasi (WP No. 2646/2009), Lance Hav Arif Hussain Shah (WP No. 3449/2009), Sepoy M. Afzal (WP No. 97/2007) and Asst Wrt Officer Safdar Ali (WP No. 131/2010), have also been denied copies proceedings on the same grounds. Is it true?

3) The Constitution of Pakistan guarantees fundamental right of every citizen for having access to impartial and independent courts. Don’t you think these convicted persons are being deprived of their fundamental right by denying them copies of the court martial proceedings required for moving a civil court?

4) Is it true the officers constituting the Court Martial and the Court of Appeal are subordinates in the chain of command of the executives?

5) In order to eliminate the element of command influence in dispensation of military justice, Court of Military Appeals exists in USA, UK, Canada and Australia that are constituted by civilian judges of the superior judiciary. Why has no such step been taken by the Pakistan Army?

6) Under the Army Act, the sentence of death in all cases, and the sentence of dismissal and above in the case of an officer, is confirmed by the Chief of the Army Staff. Is it true?

7) Is it true that if the Court of Appeal wants to release a person whose sentence is already confirmed by the Army Chief, the appellant court has to obtain concurrence from the Army Chief before pronouncing its judgment?

8) The Pakistan Army Act states that the decision of the court of appeals shall be final and shall not be called in question before any court or authority. Is it true?

9) Under the Pakistan Army Act, the Army’s Court of Appeal can remit a punishment in part or whole, reduce or enhance or commute it to lesser punishment. Is it true?

Courtesy: The News

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