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Petitioner: Mrs. SHAHIDA ZAHIR ABBASI and 4 others VS Respondent: PRESIDENT OF PAKISTAN and others
Court Name: Supreme Court of Pakistan Judge(s):Muhammad Bashir Jehangiri, Saeeduzzaman Siddiqui, Mukhtar Ahmed
Junejo Title:Mrs. SHAHIDA ZAHIR ABBASI and 4 others vs PRESIDENT OF PAKISTAN and others Case No.: Constitutional Petitions Nos. 1, 7, 8, 9 and 11 of 1996 Date of Judgment:1996-05-14 Reported As: PLD 1996 Supreme Court 632 Result: Petitions dismissed Judgment ORDER SAIDUZZAMAN SIDDIQUI, J.---The abovementioned five Constitutional Petitions under Article 184(3) of the Constitution of Islamic Republic of Pakistan (hereinafter to be called as the Constitutiononly) have been filed before this Court directly to challenge the validity of the arrest, detention and trial of five military officers by a Field General Court Martial (F.G.C.M.) convened under the provisions of Pakistan Army Act, 1952 (hereinafter to be called as the Actonly). Constitution Petition No,1 of 1996 has been filed by Mrs. Shahida Zahir Abbasi, wife of the accusedofficer, Major-General Zahirul Islam Abbasi, Constitution Petitions Nos.7 and 9 of 1996 are filed by Brigadier Mustansar Billah and Colonel Anayat Ullah Khan, the two accused officers in the case, Constitutional Petition No,8 of 1996 is instituted by Muhammad Nawaz father of accused Colonel Muhammad Azad Minhas and Constitution Petition No,11 of 1996 is lodged by Mrs. Nayyar Hamid wife of Lt.-Col. Dr. Muhammad Hamid. In addition to these five petitions another Constitution Petition No,12 of 1996 was also filed by a Civilian Qari Saifullah Akhtar to challenge his arrest and detention by the Military Authorities. Notices were issued in all these petitions to respondents (except President of Pakistan) and the Attorney-General for Pakistan.. The respondents in response to the notices submitted their reply in all the petitions and denied allegations of wrongful arrest, torture and violation of fundamental rights of the petitioners or violation of any of the provisions of the Act, or the Army Act Rules or Army Regulations. However, in respect of Qari Saifullah Akhtar and Lt.-Col. Muhammad Hamid, the respondents in their reply stated that these two persons were not under any kind of detention or arrest as they were not the accused in the case. The learned counsel for Qari Saifullah Akhtar and
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Lt.-Col. Dr. Muhammad Hamid, however, disputed the assertion of respondents that Qari Saifullah Akhtar and Lt. Col. Dr. Muhammad Hamid were not under any kind of arrest or restraint, by the Army Authorities. In this background when the matter came up before the Court on 3-3-1996, following order was passed in open Court:-- "According to the comments filed by the respondents in the case of Mrs. Nayyar Hamid, Col. Dr. Hamid and Qari Saifullah are not tried as accused in this case. It is also stated that they are not in the custody of the Army, at present. Both Col. Hamid and Qari Saifullah are directed to appear in person before this Court tomorrow to verify whether they are in custody or not. The petitioner is directed to convey this order of the Court to these persons. The above direction is without prejudice to the contention of Attorney-General that this Court has no jurisdiction to hear these petitions. Adjourned to 4-3-1996." In pursuance of the above order both Qari Saifullah and Lt.-Col. Dr. Muhammad Hamid appeared in Court on 4-3-1996. After hearing the Judge Advocate-General and Qari Saifullah Akhtar, Petition No,12 of 1996 was disposed of as follows:-- "Brig. Muhammad Amin J.A.G. Is present. He makes a statement that Qari Saifullah Akhtar, who is present in Court, had been released before Eid on 20th February, 1996. He further states that no condition is attached to his release. Qari Saifullah Akhtar also states that he is no more under the custody of the Army and free to move about. In view of the statement of Judge Advocate-General, the petition filed by the petitioner has become infructuous and same is disposed of accordingly." Lt.-Col. Muhammad Hamid on appearance in Court, however, insisted that he was still under arrest and restraint by the Military Authorities while Judge Advocate-General made a categorical statement in Court on behalf of military authorities that he was not under any kind of restrain. In view of the position taken by Lt.-Col. Dr. Muhammad Hamid, Petition No,12 of 1996 was also heard along with other petitions. Before dealing with Constitution Petitions bearing Nos. 1, 7, 8, and 9 filed by Mrs. Shahida Zahir Abbasi wife of Maj.-Gen. Zahirul Islam Abbasi, Brig. Mustansar Billah, Muhammad Nawaz father of Col. Muhammad Azad Minhas and Col. Anayat Ullah respectively who were being tried by the F.G.C.M., it would be appropriate to dispose of Petition No,1 of 1996 which relates to Col. Dr. Muhammad Hamid as according to respondents, he is neither an accused in the case nor he is under any kind of detention or arrest. In Petition No,11 of 1996 filed by Mrs. Nayyar Hamid wife of Lt.- Col, Muhammad Hamid, it is alleged that Lt.-Col. Dr. Muhammad Hamid was taken away from his office in H.Q. 10 Corps by some Military officer of- S.I.B. Without disclosing any reason. He was later informed that he was arrested on the instruction of then C.O.A.S. On suspicion of being involved in the case pertaining to Brig. Mustansar Billah. He suffered heart attack while in detention and was, therefore, admitted to Armed Forces Institute of Cardiology, wherefrom he informed his wife (petitioner) on 1-10-1995 about his detention and arrest. He was discharged from hospital on 4-10- 1995 and shifted to his residence where he was kept under arrest. He was -again shifted from the residence to a mess on 14-10-1995. He was allegedly tortured by S.I.B. Personnels and was compelled to make statement during his detention on 6-11-1995. Since then he was under detention and was again admitted to hospital on 20-1-1996. In the end, prayer is made for directing his immediate release and grant of such other reliefs as he may be found entitled to in the facts and circumstances of the case. In reply to these allegations, the respondents filed the following reply:-- "(1) Preliminary objections. Lieutenant-Colonel Dr. Muhammad Hamid, the petitioner's husband is subject to the Pakistan Army Act (PAA), 1952. If the officer had felt himself aggrieved he should have lodged a complaint to the Federal Government as laid down in PAA Sec.
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168. No violation of fundamental rights has taken place, as such the petition is not maintainable under Article 184(3) of the Constitution. (2) It is stated that the petitioner's husband was required in connection with the investigation of case against the four accused officers. The allegations of his surreptitiously and deceptively having been taken away, abduction, torture or violation of any of his rights under the Constitution are totally denied. The officer is not under any kind of custody. He availed 19 days casual leave during December, 1995 and January, 1996. He is admitted in AFIC, Rawalpindi, and is at liberty to go and reside with his family after his discharge from the hospital. Even now the members of his family including the petitioner have free access to him, like any other patient in the AFIC. (3) It is prayed that, in view of the above, the petition being baseless may be dismissed." When appeared in Court on 4-3-1996 pursuant to the order of the Court dated 3-3-1996, Lt.-Col. Muhammad Hamid, repeated the allegations made in the petition. He, however, admitted that he was twice granted leave during the alleged period of his detention. Annexure 'Dto the petition filed by the petitioner clearly shows that the name of Lt.-Col. Muhammad Hamid appears as prosecution witness No,10 in the case and he is not treated as an accused. The Judge Advocate- General (J.A.G.) on behalf of respondents, categorically stated in Court on 4-3-1996, that Lt.-Col. Muhammad Hamid is not an accused and he is neither under arrest nor any kind of detention. The J.A.G. However, added that as Lt.-Col. Dr. Muhammad Hamid is a witness of prosecution in the case he is presently attached with Artillery Centre, Attack C.M.H.. And under the rules he cannot leave the place of his posting/attachment without permission of the competent authority. Lt.-Col. Dr. Muhammad Hamid did not dispute his present attachment with Artillery Centre, Attocic C.M.H. In these circumstances, it cannot be argued that Lt.-Col. Dr. Muhammad Hamid is either under arrest or any kind of illegal restraint by the Army Authorities. Since Lt.-Col. Dr. Muhammad Hamid is presently neither under arrest nor under detention, therefore, the reliefs claimed in the petition cannot be granted to him. Constitution Petition No,11 of 1996 is, accordingly, dismissed as not maintainable. I will now take up the remaining four Constitution Petitions Nos.1, 7, 8 and 9 of 1996 which relate to Major-General Zahirul Islam Abbassi, Brigadier Mustansar Billah, Col. Muhammad Afzal Minhas and Cal. Anayatullah Khan respectively, who. Are being proceeded against before teh F.G.C.M. Convened by the Commander Rawalpindi Logistic Area. The learned Attorney-General challenged the maintainability of these petitions before this Court on the following grounds:-- (1) That proceedings before a Court Martial are not amenable to the jurisdiction of any Court, including the Supreme Court, in view of the provisions of Article 8(3) of the Constitution, and section 133 of the Act; (2) That the jurisdiction exercised by the Supreme Court under Article 184(3) of the Constitution is analogous to the power available to the High Court under Article 199 of the Constitution and therefore, Supreme Court cannot pass any order in relation to a person who is for the time being is a member of the Armed Forces of Pakistan or is subject to Army Act in view of sub-clause (3) of Article 199 of the Constitution; (3) That the grievance made in the present petitions are in the nature of alleged procedural irregularities for which remedies are available to the aggrieved officers by way of revision and appeal under the Act and as such these cases are not fit to be entertained under Article 184(3) of the Constitution; (4) That the trial of the accused officers having commenced before a competent Tribunal, this Court will not interfere with the proceedings of trial and allow it to reach its logical end, leaving the parties to have recourse provided under the Act; and (5) That in any case, the contentions raised in the present petitions relate tcj grievances of individual nature which cannot be entertained under Article 184(3) of the Constitution as the two
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jurisdictional requirements to take cognizance in the matter, namely (i) existence of a question of 'public importanceand (ii) involving enforcement of any of the 'Fundamental Rightsconferred by Chapter I of Part II of the Constitution, are totally absent in the present cases. The learned counsel for the petitioners on the other hand, contended that the initial arrest of the persons accused in the case and their subsequent detention and trial by the F.G.C.M. Are not only violative of the provisions of Articles 9, 10 and 14 of the Constitution but they are also against the provisions of the Act for the following reasons:-- (1) That the accused were neither shown nor given any warrant or order of arrest at the time of their arrest nor they were informed by the grounds of their arrest when they were into custody by the personnels of S.I.B. (2) That in contravention of Article 10(2) of the Constitution, the accused persons were not produced within 24 hours of their arrest before any Magistrate or any other officer competent to grant their remand. (3) That the accused persons were subjected to worst kind of torture after their arrest by the S.I.B. Personnels to extract confessions which amounted to gross violation of the provisions of Article 14 of the Constitution. (4) That the trial against the accused persons has been vitiated on account of bias of the convening authority who is a subordinate of the present Commanding Officer, 10 Corps. The Commanding Officer, 10 Corps is the same officer who investigated the case against accused persons and arrested them in his capacity as Director-General, Military Intelligence and the convening order clearly states that the sentence will be confirmed by the convening officer or his superior. (5) That the convening of Field General Court Martial (F.G.C.M.) instead of General Court Martial (G.C.M.), is mala fide as in time of peace, persons are generally tried by G.C.M. And not by F.G.C.M. Which is convened only at the time of war and at places where officers in sufficient members are not available. (6) That the trial of the accused persons by F.G.C.M. Instead of G.C.M. Is otherwise prejudicial to the accused persons and amounts to denial of a fair trial as all members of F.G.C.M. Except its President are junior in rank to one of the accused who is a Major General, Whereas if accused would have been tried by G.C.M. All its members including its President would have been officer not below the rank of Major-General. Besides the procedure of trial before F.G.C.M. Is less favourable to accused as compared to the procedure followed in trial by G. C .M . (7) That all the prosecution witnesses in their summary of evidence have admitted that they were subjected to torture before recording of the summary of evidence and as such trial of accused persons on the basis of evidence which has been extracted through torture, is violative of the fundamental rights of the accused to get a fair trial. (8) That the holding of the proceedings of F.G.C.M. In camera is in violation of the rights of the accused, who are entitled to be tried in an open Court under the Pakistan Army Act/Rules. (9) That the accused officers have been denied illegally the copies of the statements on the basis of which they have been charged in the case which has greatly prejudiced their defence in the case. This action of respondents also amounted to the denial of a fair trial to accused persons. (10) That the change in the command of accused persons is mala fide and contrary to provisions of section 4 of the Act and para. 77 of the Army Regulations (Instructions) (AR-I); and (11) That the accused officers cannot expect a. Fair and just trial before F.G.C.M. In the present hostile atmosphere created against them as a result of deliberate and sustained propaganda on electronic and print medias, immediately after their arrest before commencement of the trial, by the highest functionaries of the State describing them as misguided fundamentalist conspirator who planned to do away with the highest political and military leadership of the country including
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their families and to grab power by overthrowing the Constitutional .Set-up. These actions of respondents amount to prejudging and prejudicing the trial of the accsued officers." Before considering other contentions in the case, it will be appropriate to deal with objections of learned Attorney-General relating to the jurisdiction of this Court in the present cases. The learned Attorney-General pleaded complete ouster of jurisdiction of all Courts in respect of proceedings and orders of a Court Martial under the Act. The learned Attorney-General further contended that besides, provisions barring jurisdiction of all Courts in respect of proceedings and orders of Military Tribunals under the Act, the Constitution also prohibited passing of any order by the superior Courts in relation to a person who is a member of Armed Forces or who is for the time being subject to any law relating to Armed Forces or in respect of any action taken in relation to him as a member of Armed Forces or subject to such laws. According to learned Attorney-General, the prohibition on the powers of Courts to take cognizance of a case relating to proceedings or orders passed by a Military Tribunal or in respect of a person who is member of Armed Forces of Pakistan or who is for the time being subject to Military Laws, is dual in nature. One under the Act and the other under the Constitution. To support his above contention, learned Attorney-General relied on section 133 of the Act and Articles 8(3) and 199 of the Constitution. Section 133 of the Act relied by the learned Attorney-General reads as follows:-- "133. Bar of appeals.--No remedy shall lie against any decision of a Court Martial save as provided in this Act, and for the removal of doubt it is hereby declared that no appeal or application shall lie in respect of any proceedings or decision of a Court Martial to any Court exercising any jurisdiction whatever except as provided for in section 133-A." The above provision of law relied by the learned Attorney-General is contained in sub- Constitutional legislation. It is well-established principle of law that a provision barring jurisdiction of Courts contained in a sub-Constitutional enactment, however, expressly and widely worded, cannot affect or take away the jurisdiction of superior Courts conferred on them under the Constitution. It is, therefore, quite clear that the bar of jurisdiction contemplated under section 133 of the Act can neither affect nor takes away the powers and jurisdiction exercised by this Court under Article 184(3) of the Constitution. The learned Attorney-General has, however, also relied on Articles 8(3) and 199(3) of the Constitution to contend that even under the Constitution the jurisdiction of this Court has been barred when the matter related to 'a person who is either a member of the Armed Forces of Pakistan or is for the time being subject to the provisions of the law applicable to Armed Forces ..Or the matter related to an action taken against such a person. Article 8 of the Constitution relied by the learned Attorney-General reads as follows:-- "8.--(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. (3) The provisions of this Article shall not apply to-- (a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or (b) any of the-- (i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule; (ii) other laws specified in Part I of the First Schedule; and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter.
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(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in Part II of the First Schedule into conformity with the rights conferred by this Chapter: Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months. Explanation.--If in respect of any law Majlis-e-Shoora (Parliament) is the appropriate Legislature, such resolution shall be a resolution of the National Assembly. (5) The rights conferred by this Chapter shall not be suspended exept as expressly provided by the Constitution.:' Clause (1) of Article 8, ibid, declares all laws, usages and customs having force of law, which are inconsistent with the rights conferred by Chapter I of Part II of the Constitution as .Void to the extent of inconsistency. The mandate in clause (2) of Article 8, ibid, is directed to the State not to enact any law which takes away or abridges the rights conferred by Chapter I of Part II of the Constitution and further declares that if any such law is enacted then to the extent of such contravention it will be void. However, the laws specified in sub-clauses (a), (b) (i) and (ii) of clause (3) have been excepted from the rigours of clauses (1) and (2) of Article 8 ibid. The effect of Article 8(3)(a) of the Constitution is, that the law specified therein have been saved from being challenged or attacked on the ground of their inconsistency with the fundamental rights conferred by Chapter I of Part II of the Constitution. However, protection given to laws specified in sub-clauses (b)(i) and (ii) of Article 8(3) ibid, from being challenged on the ground of inconsistency with the fundamental rights conferred by Chapter I of Part II ibid, was only for a specified period during which the appropriate legislatures were directed to bring them in conformity with the provisions of Chapter I ibid. Army Act, 1952 is one of those pieces of legislation which is protected under Article 8(3)(a) of the Constitution from being challenged on the ground of its consistency with the provisions contained in Chapter I of Part II of the Constitution. However, this controversy does not arise in the present case, as petitioners have not challenged any of the provisions of the Act on the ground of its inconsistency with the fundamental rights conferred by Chapter I of Part II of the Constitution. The contention of learned Attorney-General that on account of protection given to the Act under Article 8(3) of the Constitution, the ouster clause in section 133 of the Act should be read as barring the jurisdiction of this Court, under Article 184(3) of the Constitution, does not appear to be correct. The protection given to the Act under Article 8(3)(a) of the Constitution cannot enhance its status from a sub-Constitutional legislation.To a Constitutional provision of law, so as to affect the jurisdiction of this Court conferred by the Constitution. The jurisdiction conferred on this Court under Article 184(3) of the Constitution cannot be affected or taken away by any sub-Constitutional legislation. I am, therefore, of the view that section 133 of the Act did not affect the jurisdiction of this Court under Article 184(3) of the Constitution. The learned Attorney-General, however, also pleaded a Constitutional bar on the exercise of power of this Court under Article 184(3), ibid, by virtue of clause (3) of Article 199 of the Constitution which prohibited a High Court from passing any order under clause (1) of Article 199 ibid, when the matter related to a person who is member of the Armed Forces of Pakistan or is a person who is for the time being subject to law applicable to armed forces or the matter related to an action taken in respect of a person who is subject to such laws. According to learned Attorney-General, the powers conferred on this Court under Article 184(3) of the Constitution being analogous to the jurisdiction of the High Court exercised under Article 199 of the Constitution, this Court cannot pass any order under Article 184(3) of the Constitution if the matter before it related to the categories of cases mentioned in Article 199(3) of the Constitution. The learned Attorney-General contended that the framers of Constitution by making specific reference to Article 199, in Article 184(3) of the Constitution made their intention clear. It will he easier to understand the true import of the above
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contention of learned Attorney-General if we divide it into parts; namely, (i) the scope and extent of ouster of jurisdiction of High Court to pass an order under Article 199(1) of the Constitution in matters covered by Article 199(3) ibid; and (ii) the extent of application of Article 199(3) ibid to the proceedings before this Court under Article 184(3) of the Constitution. The scope of Article 199(3) of the Constitution with reference to the power of the High Courts to make an order in respect of cases falling under Article 199(3) ibid, was examind by this Court in the case of Brig. (Retd.) F.B. Ali v. State PLD 1975 SC 506. Harnoodur Rehman, C.J. (as his lordship then was), in his leading opinion in the above case observed as follows on the scope of Article 199(3) of the Constitution:- "The contention raised on behalf of the State that, in any event clauses (3) and (4) of Article 199 of the present Constitution, constitute a bar to the power of the High Court and this Court to interfere with the decision of this Court Martial has now to be noticed. These clauses as amended by Act XXXIII of 1974 on 8-5-1974 read as follows:-- '199.---(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising…
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