Monday, August 29, 2016

Writ Petition No. 3315-P

Daily Pakistan adds details in this article concerning the Supreme Court's judgment in the military courts case:
The judgment authored by Justice Sheikh Azmat Saeed stated that the court was not persuaded to interfere with the impugned Order dated May 12 of the Lahore High Court, Bahawalpur Bench, dismissing the Constitutional Petition i.e. Writ Petition No. 3315-P of 2016, challenging the conviction and sentence of the Convict.
The order stated that the counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with malafides of facts or law or even otherwise was without jurisdiction or Coram non judice
“It appears from the record that the Convict, being subject to the Pakistan Army Act was tried for the offences triable by the Field General Court Martial (FGCM), which was convened and constituted in accordance with the law.” 
“No personal bias of any Member of the FGCM against the Convict has been established nor was the proceedings conducted mala fides or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn appear to be blatantly unreasonable or wholly improbable.” 
“No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. No case of malice in law or coram non judice was made out,” the judgment stated. 
The court order further stated that the extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. 
The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the mischief sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. 
“The examination of the record reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed there under, hence, the conviction and sentence do not appear to be coram non judice,” it added. 
The court observed that it was settled law that neither the High Court nor Supreme Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it. 
However, the court has scanned the record in the instant cases. 
The evidence besides an eye witness account included a judicial confession, which was proved by the Judicial Magistrate, who recorded the same and appeared as a witness before the FGCM. 
The Convict never retracted from his confession. 
The Convict, on his own, in his statement before the FGCM, admitted his guilt.
In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or otherwise improbable. 
The counsel for the Petitioner has not been able to persuade the court that the conclusion drawn, conviction recorded and sentence passed are not countenanced by law. Hence, no case of malice in law has been made out. 

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