Muhammad Akram vs federation of Pakistan through secretary ministry of defense , Rawalpindi

/ IN THE FEDERAL SHARIAT COURT.

(Oneinal.Iunsdiction)

, PRESENT:

' MR JUSTICE HAZIQUL KAHIRI, CHIEF JUSTICE

MR JUSTICE DR FIDA MUHAMMAD KHAN

MR JUSTICE SALAHUDDIN MIRZA

MR JUSTICE MUHAMMAD ZAFAR YASIN.

MR JUSTICE SYED AFZAL HAIDER

(1) SHARIAT PETITION NO.44/1/1993

(2) SHARIAT PETITION NO.4/1/1993.

CoL (Retd) Muhammad Akram Son of Malik Fateh Khan Petitioner, Versus

1 Federation of Pakistan Through Secretary Ministry of Defence Rawalpindi 2 Secretary, Senate Secretariat, Islamabad Respondent.

For the petitioner: ... Col: (R) M. Akram, Petitioner/ Advocate

Counsel for Federal ... Sardar Abdul Majeed, Standing Government. Counsel for Federal Government.

Col. Jehangiree, Pakistan Army, JAG, Dept- Cmrd. Jan Sher, Pakistan Navy.

(aiongwith Lt. Cmdr. M. Nawaz M a li . Assistant JAG, Pak Navy.

Sq. Ldr. Sohail, Assistant JAG. Pakistan A m - Force.

y—c /

Mr. Muhammad Tahir Khan, S.O - SemM t Secretariat.

Counsel for the State Peer Liaqat Ali Shah, AG, NWFP iloa^ulfc Mr. Sharif Janjua, Advocate and Q a iiA b M Rasheed, Advocate.

Mr. Shafqat Munir Mahk. .t it .

A.G.,Puqjab.

Mr. Mehmood Raza Khan, AddL A jG . Baluchistan.

Mr. M. Sabir Hyder AddL A .G - S M aiongwith die Mr. Arshad H. L o A t. A s a a a t A.G., Sindh.

Juris-consults Dr. Hafiz Muhammad Tnfad aad Dr. Muhammad Aslam Khaki, J n iM N s r ib .

Dates of Institution 13.02.1993 and 23.12.1993.

Dates of hearing 25.05.1993, 08J1.1994. IS J U W L 10.04.1994, 29.11.1995. tlf^ W

14.09.2000, 10.192080. 24J020T?.

12.022008,27.03.2908. 2 9 A U S * . 31M 2M S

and 27.052008.

Date of decision. 2.-9-3.008

S P NO 44/1/19«3

2 S P NO 4/I/IW3

■RJDGMENT,

JUSTICE HAZIOUL KHAIRI, C J.:- These two Shanat Petitions namely S P NO 4/1/1993 and S P N0.44/I/1993 were filed by Col (Retd) Muhammad Akiam through his counsel Ibad-ui-Rehnun Lodhi. Advocate challenging Sections 133-A and 133-B ot The Aimy Act 1932 under Article 203 D of the Constitution ot Islamic Republic of Pakistan on the ground of its being repugnant to Quran and Stimuli 2 It may be recalled that this Court in exeicise ot its suo moto poweis had examined the Pakistan Army Act 1932 wheieundei theie was no provision for appeal against conviction of a Court Martial After hearing the paities. the Fedeial Government was directed to constitute appellate Court to heai appeals against conviction undei Hudood and other laws except petty punishment which may be made subject to leviston only (PLD 1983 F S C 3o3) Aggrieved by the order of Federal Shanat Couit, the Federation ot

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Pakistan had prefened ail appeal before the Hon’ble Supieme Court Shariat Appellate Bench, which upheld the judgment of this Couit in Pakistan vs. The Geneial Public PLD 1989 Supieme Court Shanat Appel late Bench 6 Accordingly Sections 133 A and 133 B Army Act 1952, Section 162 A Air Force Act 1953 and Section 138 Pakistan Navy Act 1961, were introduced whereby appellate Courts weie established

3 In Shanat Petition bearing No 44/1/1993 the petitioner had laised the following grounds under Article 203 D ot the Constitution - “a) That under Section 133 A. of The Pakistan Army Act 1952. an Army convict is required to file his appeal against the sentence of HADD, awarded to him by a Court Martial under an Islamic Law, befoie the Court ot Appeals, which is to be presided over either by the Chief of Army Staff or by one of his subordinate officers, and

b) That the constitution ot the Court ot Appeals is lepugnnnt to the injunctions ot Islam and the natural justice on the following grounds -

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Under sub-section (2) of the section ibid, the sentence of HADD, before being put to execution, is required to be confirmed by the Court of Appeals. The appeal shall also be heard by the Court of Appeals against its own confirmed decision Thus a Judge has been allowed to be a judge in his case/cause, which is against all the accepted canons of ‘ADL’ and ‘QIST’ and the natural justice

The appellate review too has been retained within the Army, which does not inspire confidence of its judicial impartiality, which is otherwise sine qua non for fair dispensation of Military Justice.

The presiding officer, being from the executive and not from the judiciary, the convict will have no confidence in the soundness of jus judgment.

The Army convict stands discriminated in the matter of ‘equal treatment and protection under the law’, as is guaranteed under the Constitution, and the ‘Independent Islamic System of Justice without any discrimination’, as is guaranteed under ‘Enforcement of Shariah Act, 1991’.

Most of the common law countries, on the pattern of which our criminal law is mainly based, have granted, since fifties, the right of appeal to the members of their

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Alined Foiees befoie Courts, which aie not onI\ pie-oded over by Civilian Judges but are also total!} independent of the command influence of the armed forces 4 In Shariat Petition bearing No 4/1/1993 the petittonei had raised the following grounds under Article 203-D of the Constitution:-

(1)That vide sections 120 to 123 of Pakistan Aimy Act 1952. the findings and sentences by couit martial aie subject to the confumation by Commandei-111-Chief oi by an officer empoweied in this behalf by him, wheieas m view of the newly inserted section namely section 133 <— c /

B, the Commander-in-Chief/Chief ol Aimy Stalt oi his nommee/nommees have been designated appellate courts In view of this section, the continuing authonty of the tual courts’ decisions will have the powei to heai the appeals against then own/confnmed judgments which is against the pnnciples of natural justice as well as the letter and spmt of the concept of “ADL” & “QIST" as laid down in Holy Quran and Sunna of Holy Piophet

(2)That it is a settled law that an authout} which had already manifested open hostility to cause of a party and had expressed its views m that matter in anothei capacity, should not sit m judgment of the same mattei as appellate

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authority ui view of the principles ot natuial justice and it ts also a settled law that no peison could he a judge in Ins own cause

5 The points raised by the petitioner against section 133-A of the Pakistan Army Act 1952 in Shanat Petition No 44/1/1993 as well as against Section 133-B thereof in Shanat Petition No 4/1/1993 on a bare reading, aie substantially the same and aie. therefore, dealt with together

6 Notices were issued to the respondents namely (i) Fedeiation ol Pakistan and (u) Senate of Pakistan, thiough the Attorney Geneial ol Pakistan who made request to this Court to implead Pakistan Navy and Pakistan Air Force as necessary parties since identical provisions as well aie contained in Pakistan Navy Ordinance 1961 and Pakistan An Force Act 1953 Accordingly they were made parties and they participated in the proceedings befoie us

7 Duiing the course of aiguments, it was consideied expedient to appoint Di Muhammad Aslam Khaki, Dr Tahir Mansoon. Di Hafiz

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Muhammad Tufail who aie on oiu panel as jurisconsult** t«> u**M*-t 1 0 and to addiess the court on the question lmolved m the ca-e. it was , further oidered that the matter may be placed before a larger Bemh of five judges because of its impoitance and may be heaid at Islamabad.

Karachi and Lahore

8 In older to examine the grounds urged by the petitioner on tee touchstone of Quran and Sunnah it will be advantageous to repnsJuve Section 133 A and Section 133 B of the Aimy Act 1952 as under SECTION 133.A (1) Any person to whom a Court Maitul has awarded a sentence of Hadd undei an Islamic Law mas wnhtn sixty days from the date of sentence, piefer an appeal against the finding and sentence of the Couit Martial t.

Court of Appeals consisting of the Chief of Arms Stall or an officer, being a Muslim, designated by him in this behalf, hereinaftei lefeired to as the Court of Appeals tor Hadd cases

(2)No sentence awarded by a Court Maitial as Hadd under an Islamic Law shall be executed unless it is confirmed by the court of appeals foi Hadd cases

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(3)The Couit of Appeals for Hadd cases shall have powei to -

(a)Confiim the finding oi sentence or both, oi

(b)Substitute a valid finding or sentence tor an invalid finding or sentence , oi

( c) call any witness for the purpose of lecoiding additional evidence m the piesence ot the parties, who shall be afforded an opportunity to put any question to the witness. or

(d)annul the pioceedings of the Court Maitial on the giounds that they are illegal or uniust. or

(e)order retrial of the accused b\ a fresh court

(4)The decision ot the Court of Appeals for Hadd cases shall be final and shall not be called m question betoic an\ Couit or other authority "

SECTION 133.B

(1)Any person to whom a court-martial has awarded a sentence of death, imprisonment toi life, impiisotiment exceeding thiee months, or dismissal fiom the seivice aftei the commencement of the Pakistan Army (Amendment) Act 1989, may, within forty days from the date ot announcement ot finding or sentence oi promulgation thereof, whichever is eaiher. prefer an appeal against the

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finding oi .sentence to a Court of Appeals consisting ot the Chiet of the Army Staff oi one oi moie officeis designated by him in this behalf, piesided b\ an officer not below the rank of Bngadier in the case ot Geneial Court-Martial or Field Geneial Court- Martial oi Distnct Couit- Martial oi Summaiy Court- Martial convened oi confirmed oi countersigned by an officer of the lank of Brigadiei or below as the case may be. and one oi mote otficeis, piesided by an office: not below the lank of Majoi General in other cases, heieinatter lelened to as the Court of Appeals

Piovided that where the sentence is awatded by the court-martial under an Islamic law, the officer oi officeis so designated shall be Muslims.

J

Provided further that every Court of Appeals may be attended by a judge advocate who shall be an officer belonging to the Judge Advocate General's Department.

Pakistan Army, or, if no such officer is available, a person appointed by the Chief of the Army Staff

(2)A Court of Appeals shall have powei to —

(a)accept or i eject the appeal m whole oi in part, oi

(b)substitute a valid finding oi sentence foi an invalid finding or sentence, or

liilfiil

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(c)call any witness, in its discretion foi the puipose ot recoiding additional evidence m the presence ot the parties, who shall be afforded an oppoitumty to pul any question to the witness, oi

(d)annul the proceedings of the court-maitial on the ground that they aie illegal or unjust, or

(e)Older letrial of the accused by fresh couit oi

(f)remit the whole or any part of the punishment or leduce or enhance the punishment or commute the punishment for any less punishment oi punishments mentioned m this Act

C

3- The decision of a Court ot Appeals shall be final and i

shall not be called in question before any eouit oi othei authority whatsoever

9 It was stated by all the parties that identical piovisions weie incorporated in Pakistan Navy Ordinance 1961 and Pakistan An Foice Act 1953, therefore, we need not repeat them heie. being unnecessary

10 The Fedeial Government on its behalf and on behalf ot Pakistan Army had serious reseivattons about the pleas raised by the pelitionei

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which lun into a large numbei of pages However toi the sake ot brevity, the objections raised by them in both the petitions aie summarized as under

1 That the petitions are liable to be iejected as no verse fiom the Holy Quian or tradition of the Holy Prophet (Peace Be Upon Him) has been quoted that the piovisions ot law in question were repugnant to the injunctions of Quian and Sunnah 2 That major portion of the judgment of the Federal Shanal Couit had been implemented tor the establishment of Coutt ot Appeals against the finding and sentences ot •Hudd' under the Islamic Laws vide Section 133A of the Pakistan Aimy Act 3 The learned judges ot the Shariat Appellate Bench ot the Supreme Court after having heaid the arguments, agieed with the view of the Federal Shariat Couit and held that although the United Kingdom and the United States of Ametica haw gone to the extent ot appointing Civil Judges foi heanng appeals against the decisions ot courts martial the detect would stand removed it the Courts of Appeal piovided foi healing appeals against the decisions oi courts-maitial in thiee Deience Service Laws Case of ottendcrs sentenced to ‘Hadd' undei the Islamic Laws dnected that. Section J33A of the Pakistan Army

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12 S P NO 4/1/1443

Act. 1952, be suitably amended, providing the light ot appeals against the orders passed by the courts-martial, except foi petty offences, which were made subject to leviston only Consequent upon the abo\e judgment ot the Shanat Appellate Bench of the Supreme Court. Section I33B of Pakistan Aimy Act, 1952 was enacted vide Gazette of Pakistan (Extiaoidmaiyl dated December 24. 1992 The enacted law stipulates constitution of the Courts of Appeals consisting ot the Chief ot the Army Staff, or one or more officers designated by him in this behalf.

(i)Under Section 123 the Pak^tan Arms Act. 1952.

legally, the finding and sentence ot a Field Geneial Court Martial mav m be confirmed bv V the

"convening officer" m cases falling undei the provision of Section 84(b) of the Pakistan Aimy Act. 1952 without having been so empoweied by the Chief of Army Staff in case the couit has been convened under the provisions of section 84 (b) ol the Pakistan Army Act 1952

(n)As regards the contention of the petitionei that it would be against the principles of natuial justice and repugnant to letter and spmt of concept ot ‘Adf and 'Q isf as laid down in the Holy Quian and Sunnah, that the confirming authonty and the

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appellate authonty would be the same and refeiente was made to Rule 208 of the Pakistan Aimy Act Rules, 1952. which reads as under “208, ineligibility of officers for Court of Appeals:- Save the Chief of the Amiy Staff, an ofiicei shall not he eligible to be designated on the Couit of Appeals if he investigated the chaiges befoie tnal, or took down the summaiy oi abstiact ol evidence, oi was a membei of the Court ot inquny respecting the mattei on which the charges against the accused weie found oi was a membei of court martial in that case, or was the commanding officer who held the trial oi who convened the couit oi confiimed or counteisigned court maitial piocecdmgs ol the case”

(in)It would be observed that except the chief ot Aimy Staff who is the supieme authonty m the Aimy as far as dispensation of justice is concerned, all otheis in the circumstances stipulated theiem the Rule ibid aie rendeied ineligible to be designated on the Court of Appeals

(iv)Refeienee made by the learned judges ot the Shariat Appellate Bench ot the Supieme Court as to the civilian judges as membeis ot the appellate couit in Amenca was in context ot stiessing the

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need for the appellate courts in the thice Defence Forces of Pakistan, but it was nevei intended that the appellate courts in the Armed Foices of our country should also include civilian judges Tins was not the spirit of the impugned judgment ot the Shanat Appellate Bench of the Supieme Couit.

which is manifest fiom the tact that the learned judges of the Shariat Appellate Bench ot the Supreme Court m their judgment ha\e explicitly laid down that. e\en it the Courts ot Appeals piovided tor hearing the appeals against the decisions of the courts-martial, who aie sentenced to ‘hadd' undet the Islamic law's, aie empowered to heai appeals against the convictions tor othei serious offence

(v)Under the Article 8(3) of the Constitution ot the Islamic Republic of Pakistan. 1973. the piovisions relating to fundamental lights of the citizens of this Article shall not be applicable to any laws relating the Aimed Forces

(\i) Army has its own judicial system w'hich deals with the investigation, arrest and ti lal ot ottendei s undet the Pakistan Army Act 1952, which withstood the

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test of the time and contingencies arising out ot exigencies ot the service

(vii)Section 133B ot the Pakistan Aimy Act 1952. has been enacted in compliance with the judgment ot the Shanat Appellate Bench of the Supreme Court It is not lepugnant to any injunctions ot Islam and needs no amendment in it. as the petitionei contends

(vm)The proceduie of couits ot appeal ot the aimed force is not violative ot fundamental Rights Reteience was made to section 152 ot PAF Act stating that CAS is confirming authonty ol all court marital findings and sentences PAF Act Rule 256(2) debars the officer who passed the judgment to confirm its Judgment oi to sit as a court of appeal or member of couit ot appeal Tbe accused has full right to object on an\ membei ot the court on any ground and m almost 10(K/f cases the officer objected to was replaced The petitioner has failed to bung foith adequate grounds to justify waving oft the pei lod ot limitation The review of laws of the Defence Forces was earned out after due notice given to the geneial public The Fedeia! Shanal Court and

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Supieme Court had held that laws applicable to the civilian m this legard is distinct fiom the laws applicable to the membeis ot the Aimed Foices The objection raised by the petitionei on section 90.91 and 93 of PAF Act Rules is not lelevant being not repugnant to the Injunction ot Islam 11 Pakistan Air Foice in its objections and comments had stated as under

“We geneially agiee with the stand taken by the Pakistan Aimy and then paiawise comments The torum ot Appeal Courts tot

<— ) {— 1. I

Hadd cases under Sec 162 B PAF Act is m line with the judgment of Fedeial Shariat Court dated 13 10 83 and the Shariat Appellate Bench of the Supreme Court dated 18 9 88 As per judgment of the Shariat Appellate Bench amendment to the Pakistan An Force Act. 1953 vide section 162-B has the lequisite legal sanction and thus not challengeable The Court of appeal consists of an officei designated by CAS and not by Chief of the An Staff

It is inconect to say that the findings and sentence ol all courts Martial aie subject to the confnmation by CAS The pioceedmgs of Geneial Court Martial aie only continued b\ CAS because he is the convening Authonty toi that (Section

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152 PAF Act refers) The proceedings of District Couit Martial and Field General Court Martial are continued b\ the confunung authonty (Base Cdrs ot the lank ot Gp Capt oi above who aie empowered by CAS to convene and coiifiim the proceedings ot DCM and FGCM) It is mconect to sa\ that confirming authoiity of the tnal court's decisions will has e the powei to heai the appeals In tact PAF Act Rule-256 (2) debuts the officer who eithei convened the court continued its pioceedings to sit as court of appeal or lemained membei ot the court, which tried the appellant The accused had all the lights to object on any membei of the court or on any ground and in case such member is replaced

12 On behalt ot the Chief of the Navy Staff paiawise comments were filed supporting Lhe stand taken b> Pakistan Anns and Pakistan Air Force stating that most of the directions issued b\ The Federal Shariat Court hase been implemented through ordinance No XXXVII of 1984 whereby Hudood laws weie made applicable to Nasal personnel and the court-martials to award 'Hadd' and 'Tazu to the offendeis Piovisions were also enacted foi the establishment ot a Court of Appeals consisting of thiee officeis i including one meiuhei

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fiom Naval Law Bianch) to be nominated by Chiet ot the Nava} Stall Right of appeal has been gianted undei section 138-A vide Pakistan Navy (Amendment) Oidinance 1984 The piovisions ot appeal aie m line with civil law The court ot appeal is convened by the Chiel oi Naval Staff yet it consists ot thiee officeis including one membei from JAG department. The decision of the court of Appeal is final and is not required to be confirmed by any authority The accused has the i lght to engage a civil advocate in addition to sen ices ot 'tnend oi the accused’ as per the choice of the accused

13 The petitionei who later on was emolled as advocate ot this Court pleaded his case in peison and submitted the following verses of Holy Qura’an in support of his case -

“Venly, Allah commands that you should lender back the tiusts to those to whom they are due. and that when you judge between men, you judge with justice Venly how excellent is the teaching which He (Allah} gives you' Truly, Allah is Ever All-Hearei. All-Seer" (4 58)

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O you who believe’ Obey Allah and obey the Messenger (Muhammad) and those of you (Muslims) who aie in authouty And it you differ in anything amongst yourselves, lefei it to Allah and His Messenger it you believe m Allah and in the Last Day That is belter and more suitable tor final determination (4 59) Surely. We have sent down to you (O Muhammad i the Book (this Qui’an) in truth that you might (tidge between men by that which Allah has shown you (1 e has taught you through Divine Revelation), so be not a pleader toi the treacheious (4 105)

O you who believe’ Stand out firmly toi justice, as witness to Allah, even though it be against vouiselves, oi your parents, or your kin, be he rich oi pool. Allah is a Bettei Protectoi to both (than you) So follow not the lusts (of your hearts) lest you avoid justice, and it you distort your witness or lefuse to give it. verily. Allah i- Ever Well-Acquainted with what you do (4 135 > (They like to) listen to falsehood, to devoui an} thing forbidden So if they come to you (O Muhammad, eithei judge between them, or turn away fiom them It you turn away from them, they cannot huit you m the least And if you judge, judge with justice between them Vcnly Allah loves those who act justly (5 42)

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Verily, Allah enjoins Al-'Adl (le justice and woi shipping none but Allah Alone — Islamic Monotheism) and Al-Ihsan [1 e to be patient in performing your duties to Allah, totally toi Allah's sake and in accordance with the Sunnah (legal ways) ot the piophet m a perfect manner!, and giving (help) to kith and km (i e all that Allah has ordered you to give them e g , wealth, visiting, looking aftei them, or any othei kind of help), and foi bids Al-Fahsha* 0 e all eu l deeds, eg illegal sexual acts, disobedience ot paients.

polytheism, to tell lies, to give false witness, to kill a hte without right), and Al-Munkar lie all that is prohibited by Islamic law: polytheism ot every kind, disbelief and every kind of evil deeds), and Al-Baghy u e all kinds ol oppression) He admonishes you. that you may take heed And the heaven He has laised it high, and lie has set up the Balance (55 7)

And obseive the weight with equity and do not make the balance deficient (55 9)

Indeed. We have sent Oui Messengeis with cleai piools and revealed with them the Scnptuie and the Balance (justice) that mankind may keep up justice And we biought forth iron wherein is mighty powei (in matteis ol

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wai), as well as many benefits for mankind, that Allah may test who it is that will help Him (Hi'* leligiom and his Messengeis m the unseen Vertlv Allah is All-Strong All-Mighty (57 25)

Allah does not forbid you to deal justly and kindlv with those who fought not against you on account (‘1 leltgiun noi diove you out of youi homes Venly. Allah loves those who deal with equity (60'8)”

14 Dr Abdul Malik Iifani on behalf ot Federal Government submitted a leseaich papei the up shot whereof is that Islam permits special law for administering justice tor the Army toices and in this f

lespect he differentiated between geneial and special principles ot Islamic law. However the conclusion as drawn by him was on the following basis

(i)The principle of piactice (Uif) is one of the souice o!

Islamic junspiudence This principle is denved liom the veise -'j—^'j(and enjoin kindness) (7 199) He quoted example from the tiaditions of the Holy Piophct and histoiv

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of the Muslim caliphs enjoining the Muslims stnet obedience to the oiders of the person in power He digued that theie are so many special occasion where m the geneial principles are not applied on the cuminals and punishment on the spot foi the deterrence of others Prolonging ol cases is not justice, however the accused must be given sufficient opportunity to be heard In support of his aigumenls he quoted reference tiom the Holy Quran 2 249 and fiom Meshkat al Masabih, tradition No 3475, 3477 He also referred to the battle of Uhud Therefoie. the laws tclanng to the Army must also be sensitive and of a special natuie A crime committed by a common peison may not be a big crime but if committed by an aimy official oi by peison wuth special qualities may amount to a heinous ciime and the criminal deseives sevei punishment Allah Almighty warned giave punishment foi the wives ot the Holy Piophet (S W A S) if they committed the cinuc Allah says v

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LylP d J i j J l T j ^.A »..9 , a t L a . 4__4 w»» ( O ye wives of the Prophet 1 Whosoever ot you committeth manifest lewdness, the punishment toi her will be doubled, and that is easy foi Allah) Al-Ahzab veise no 30 The leason is that the status of the wives of the Holy Prophet ( S WA S i is far high than the other women The> aie the Lmmah.it ul Mo'meneen However when a slave eirl committed a crime j she would be awaided half punishment, if committed by a

J

free woman

(u)Aimy is the only institution where discipline is \ei> necessary and who breaches discipline is punished severely In this respect special temporary courts consisting Aimy officeis for Army weie constituted in the past If a comt consisting of Army officers is constituted empowenng to investigate, decide and execute the case, this is not acamst the injunctions ot Islam The Muslim (mists have also

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opined that constitution ot special Courts toi partiuilui gioup ot people is peinussible (Mujahid ul Islam Qasimi IslanuAdalat Page 213).

(m)During the era of the Prophet ( S A WS ) the complainant himself used to appear and pursue his case befoie the Prophet or His Qazi and that he himselt was investigating about the criminal The judicial and the executive ofticeis in the penod of the Holy Prophet was the same peison The judge was peifomnng all the functions e g investigation, judgment and execution These were not consideied as repugnant to the Injunctions of Islam

( iv) Now a days the function of the government aie countless, therefoie the government separated institutions tioni each other and some time one institution is fuithei divided in small units Judiciaiy is sepaiated fiom executive and the investigation ot a complaint and the execution of judgments

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have been made the responsibility of independent institutions. In these days the executive appoints judges and police department is also under the control of executive.

This cannot be said as against the injunctions of Islam.

(v)The same is the situation of Army Courts. The Commander- in Chief orders for Investigation of a crime, he constitutes temporary Court for summary Court Martial to hear the case. Quran and Sunnah both are silent on the issue of separation of powers, investigation of cases and execution of judgments by one or more persons independently. The real issue is 'Justice1. This is not correct that a person investigating a case and then gives judgment based on his own investigation and then execute his own judgment means that he is judge in his own case/cause.

(vi)The Holy Prophet summarily tried the case of Abdullah Ibn- e-Jahan an army commander. During the conquest of

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Makkah. the Holy Prophet punished Saad bin Ubadah tot saying only one sentence and deprived him tiom the honom of flag bearing In this case the Holy Piophet decided on the evidence ot only one witness The Holy Piophet announced social boycott against the thiee peisons at the e\ent Tabuk 15 Di Hafiz Muhammad Tufail juris-consult, appealed before us and submitted a reseaich papei He fnstly brought to om attention the judgment ot PAKISTAN thiough SECRETARY MINISTRY OF DEFENCE Vs THE GENERAL PUBLIC PLD 1989 S C page 6 Shanat Appellate Bench 6, which upheld the decision ot this Cmul and held that denying right ot appeal to an aggrieved peison was lepugnant to injunctions of Islam and that necessaiy amendments be earned out m the provisions ot Section 133 of Pakistan Aims Act Section 162 of Pakistan Air Foice Act and Section 140 ot the Pakistan Navy Ordinance He differed with the view of Di Abdul Malik Iilani that both Quian and Sunnah are silent on the issue of sepaiation ot

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powers. He also differed with the view of Di Malik that a peison ina\ investigate a ease, sit on judgment and execute it To suppoit hiv contention he placed leliance on DR MUHAMMAD ASLAM KHAKI AND OTHERS VS GOVT OF PUNJAB and otheis (PLD 2005 FSC 3) in which it was held that vice chancellors having himselt imposed punishment can not sit in the meeting of syndicate at the time of adjudication of appeals against their own ordei It would amount to making the vice chancelloi judge m his own cause w'luch would lead to unsavory, rathei unacceptable consequences He was most likely to exeit oveit/coveit influence on the membeis ot the Syndicate who happened to be his subordinates The Couit held that impugned provisions in then piesent form, aie violative of Injunctions ot Islam Fedeial Shanat Court dnected the Authorities to suitably amend the same, so as to incorporate piovisions theiein that the Vice Chancelloi would be debarred from participation in the meeting of the Syndicate before which the appeal of any employee ot the Umveisity

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challenging his adverse older, passed qua him, is presented toi adjudication

16 Dr Hafiz Muhammad Tufail also cited a numbei of cases tiom the judicial history of Islam in regaid to confiimation ol judgments by appellate Couit but since they have no nexus with Qui'an and Sunnah we have lefrained fiom discussing them toi want ot ju i isdiction

17 Mr Aslant Khaki, a juns-consult and a senioi advocate ol this Court supported by the counsel/repiesentatives of lespondenls invited oui attention to the case of MRS SHAHIDA ZAHIR ABBAS1 and 4 others VS PRESIDENT OF PAKISTAN and others (PLD 1996 S C

632)m which it was held

“I wall now take up the objections of the petitioneis uiged m suppoit ot the contention that they do not expect tan dial betoie the EG C M The first two objections of petitioneis lelate to the alleged bias of convening oilicei and his Commanding Officer ( C O ) The objection is based on the ground that the convening ofticei is suboidinate to his C O , the

# S P NO 44/1/1993

29 S P NO 4/1/1991

officer who had conducted the initial investigation ot the case against the accused officeis Mere fact that the coiuemng otticer happened to be a subordinate ot anothei otticei who conducted the initial investigation ot case is not enough to conclude that the convening officei is biased against the accused officers There is nothing on the record bctoie us to show that the convening officer acted at the behest of his C D (who is said to be the officei who conducted the initial investigation in the cases) while convening the F G C M The convening ofhcei in the case being a wairant ‘A* holdei is not subordinate to C O in mattei of convening the F G C M The petitioners have not been able to bung on iccord any material to show that the C D of convening otticer has tried to influence the proceedings of F G C M in any mannei In fact, in \ lew ot PAA Rule 30. the C.O of con\enmg otficei being an otticei who was associated with the imestigation ot the charges against the accused officer is disqualified from sen in: on F G C M convened for trial of the accused officers in ain capacity I. therefore, see no force in these objections ot the petitioners ”

18 It was further held

“i t is quite clear that the lules of proceduic applicable loi tnal of a person in a criminal case befoie a Military Couit do not violate any accepted judicial principle governing tnal of an

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30 S P NO 4/1/1003

accused peison With the assistance of learned Alloinev General and the learned counsel foi the petitioneis we ha\e gone through vanous provisions of the Act governing the piocedme of trial befoie a Military Court and attei going through the same. I am ot the view that the pioceduie prescribed foi tnal befoie Military Courts is m no way contuuy to the concept of a fair tual in a criminal case 1 may also add here, that unlike the previous position when no appeal was piovided against the conviction and sentence awaided by a Military Court, the Act now provides an appeal against the conviction and sentence awarded by a Military Couit betoie an appellate forum"

19 The petitionei in line with his arguments contended beloie us the concept of ‘Adal, Q ist, Mizan (PLD 1989 F S C 30) Accoidmg to him under Rule 208 ot Pakistan Army Rules 1952 {utpta) letened to by the respondents except the Chief ot Army Staff, no office! shall heai an appeal who has investigated the chaiges befoie oi duiing the tnal or is the commanding officer oi has convicted oi confirmed oi counteisigned couit martial pioceedings. This gives blanket and unfettered power to the Chief ot Army Staff who may tight hom the

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stage of investigation of a case till its conclusion in appeal is empowered to solely and exclusively decide the fate of an accused person rendering the entire proceedings sliding into farce and administration of justice a mockery of first order. It was also submitted by him that in any case no justice would be expected in appeal from the hierarchy of armed forces who are trained and indoctrinated on different lines from civil courts who are trained only to administer justice He referred to Weiner’s book on “Civilians Under Military Justice”* wherein it is stated that appeals from Court Martial to Civil Tribunal were established in Britain (1951), United States (1950), Canada (1952). New Zealand (1953), Australia (1955). It further states:-

“The importance of the Court-Martial Appeal Court has not only m the fact that it provides a means by which an accused can argue that his conviction was wrong, but it also enables a civilian court to oversee the military legal system. The judges of the court are those who would hear appeals from the Crown Court and they are not therefore within the military command •The British Treaties since 1689, published by the University of Chicago (1969) P 232

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structuie Weinei expressed the view m 1967 that wjih ‘surprising unanimity, the common law woild concluded virtually at the same moment in time that, just as wai is too important to be left to the generals, so military justice is too vital to be entrusted to judge-advocate"'

20 He also quoted Article 67 (a» (1) from the Lnitoim Code ot Militaiy Justice USA. in support of his contention “(a) (1) There is hereby established a Court ot Nlilitaiy Appeals, which shall be located for administrative purposes in the Department of Defence The Court of Military Appeals shall consist ot three judges appointed from civilian life by the President, by and \\ ith the advice and consent of the Senate, toi a terms of fifteen years Not more than two of the judges oi such couit shall be appointed from the same political paity noi shall any person be eligible for appointment to the court who is not a member of the bar ot a Federal court or ot the highest court ot a State

21 The petitioner fiuther leterred to the case ot UNION OF INDIA & another Vs CHARANJ1 S GILL & others (AIR 2000 Supieme Court (India) 3427) wherein appeal undei Aimy Act was consideied as an appeal hom Caesai to Caesai’s Wife and obseived

$ P N« ‘ ^

33 S P v>

“A ban has been imposed on command interference u;tn military justice etc Our is still an antiquated svstem T h eu inJ of change blowing over the country has not permeated the Jo -e and sacrosanct precincts of the Aimy If m Civil Courts the universally accepted dictum is that justice must not onk be done but it must seem to be done.”

22 The Pakistan Aimy in oidei to lebut this position taken by the petitioner submitted a tejomder as under

”(i) The piesence of civilian judges in the couit ot Appeals ot USA cannot be refened to oui system because they ha\e J four appellate stages in the finalization of then cases whereas we have only thiee Moieoxei. theic is no Islamic injunction to stipulate the appellate stages exactk being followed by USA

(it)The contention that our Court of Appeals consists ol one peison is not correct In tact, our normal composition ot the Court ot Appeals is of two judges (officers), wheieas.

in special cases ot importance we had even thice judge1'

(in)The contention of deprivation of fundamental lights ^ misfounded It so. then all actions whatsoever in the Army including trials are hit which is not the desire of the legislature

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34 SPN04/V1W

(iv)PAA Rule 208 deals with the ineligibility ol the membei s ot a Court of Appeals The contention ot open hostility is misconceived in the presence of “Civil Review

23 We may lecall that pursuant to om decision m Suo Motu case ieported in PLD 1985 FSC 365, appellate couits were established by Army. Navy and Air Foice, the object of which was to examine the propriety ot judgments given m Couit Martial. The lespondcnts m unequivocal terms have stated before us that theie nevei was a single occasion when any Chief of Defence Services had involved himself m the Couit Martial cases which fact was candidly conceded by the petitioner Col (Ret) Muhammad Akram howexei his contention was that by vesting him with powei to confirm the sentence of an accused while sitting as an appellate court would be in violation ot the injunction of Islam as laid down m the Holy Quian and Sunnah of the Holy Piophet (peace be upon Him)

24 While examining the alleged exclusive and unfettcicd powei s ot C O A S in Court Martial and appeal we may state that Section

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133-A of The Pakistan Army Act 1952, lelates to Hudood caves onl\ in which either he or a Muslim officer designated by him would heai appeals but no sentence awarded by a Couit Martial as Hadd shall be executed unless it is confirmed by the Court of appeal Theie is nothing therein that he or his appointee shall investigate oi in any mannei interfeie with the pioceeding m Court Martial What this section envisages is that the execution of the order ot the Court Martial shall be postponed or deteued till the decision and confirmation by the appellate Court. In othei words theie would be stay of the execution proceedings pending appeal upon the accused tiling appeal within 60 days of his sentence. The history ot confirmation of sentence and stay of sentence by the appellate Court is not new Under section 374 CrP.C "When the court ot Session passes sentence of death, the pioceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court’' Section 376 Ci P C contemplates the power of the High Court to confirm or annul convictions Similai

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provision is found in Section 133 A ot the Pakistan Army Act in which the C O A S or his nominee has same powers in Hudood appeals as the High Court has in cases falling undei Section 376 C rP C

25 Likewise appeals under section 133-B arise fiom sentence ol death, imprisonment exceeding three months and dismissal liom seivice. which would lie within 40 days before the COAS oi one ol more ofticeis designated by him presided ovei by an ollicei not below the lank of Bngadier m case of Gcneial Couit Maitial oi Field General Court Maitial oi District Couit Maitial or Summaiy Couit Martial convened oi confirmed or countei signed by an otticci ot the lank ol Brigadiei or below as the case may be and one or mote ofticers presided over by an ofticer not below the lank ot Majoi Geneial, in other cases, which would be as the Couit of Appeal In view of this position the petitioner has failed to satisfy us as to how

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confirmation of sentence by the appellate courts undei section 133 A or 133 B of Pakistan Army Act is repugnant to Quran and Sunnah 26 We may point out that contrary' to the comments filed on behalf of Pakistan Navy that the decision of the court of appeal is final and is not requued to be confnmed by any authority, we find that undei section 131 A fl) ot the Pakistan Navy Ordinance, 1961 “a punishment awarded as Hadd under any Islamic Law shall not be executed unless it is confirmed by the Court of appeal and until the punishment is confirmed and executed, the convict shall be dealt with in the same manner as if sentenced to simple imprisonment “ Sinnlai is the position under section 162-A m Hadd case and undei Section 162 B m non-Hadd case of the Pakistan Air Force Act 1953 27 What follows from the foregoing is that continuation and execution of Court Martial judgment by the appellate court aie in line with the procedure prescribed under Cl P C The petitioner as well as

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Di Abdul Malik Irfam on behalf of the Federal Government have overlooked this aspect of the case

28 The other objection raised by the petitions is that the Army hieiarchy which had aheady manifested open hostility to an accused should not sit in judgment m appeal Dr Abdul Malik Iifam who had submitted a Research Paper on behalf of the Federal Government has made an effort to distinguish special law foi Armed Foices with

K— V /

ordinary laws ot the land His submission was that a dime committed by a common person may not be a big crime but it committed by an aimy official it would be a heinous crime and descives seveie punishment He also gave example horn the histoiy ot Islam that temporaly courts consisting Army Officers tor Aimy weie constituted and they were peiformmg all function i e investigation, judgment and execution The present position is no way different but tins does not follow that piefemng an appeal is repugnant to Quian and Sunnah lathei it is the other way round as held by this Court as above

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According to him theie is no concept of sepaiation of poweis in Islam We may disagree with him as the concept of separation ot powers is very close to the teachings of Quran and Sunnah and is a salient featuie enshrined under the Constitution of the Islamic Republic ot Pakistan

29 The tinust of arguments advanced by VIr Hafiz Muhammad Tufail was that denying right ot appeal to an accused is lepugnant to injunction ot Islam as was held in PLD 1989 S C 6 Shanat Appellate Bench 6 (supra) and that a Couit Maitial Judge cannot act m an appeal against his own judgment as held m PLD 2005 FSC 3 (supra) Mr Aslam Khaki another juris consult and semoi advocate ot this couit placed his reliance on PLD 1996 SC 632 in which it was held that “the pioceduie prescribed for Uial befoie Mihtaiy Courts is in no w'ay contrary to the concept of fan tnal in criminal case and “that unlike the previous position when no appeal was piovided against the conviction and sentence awaided by a Militaiy Couit. the Act now

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provides an appeal against the conviction and sentence awaided by a Militaiy court before an appellate forum”

30 According to Black's Law Dictionary Eighth Edition P 1013 Military Justice means “a situation of punitive lneasiues designated to foster order, morale and discipline within the mihtar) Militaiy Law is the branch of Public Law governing mihtaiy discipline and othei rules regarding service in the armed toices It is exeicised both in peace time and in war. is recognized by civil courts, and me hides lules fai broader for punishment of offenders ” In the case ol Miss Shahida Zahir Abbasi and 4 otheis (supia) om Supieme Couit had held that 'the proceduie piestribed for dial before Militaiy Couit is in no way contrary to the concept of a fan tual in a u iminal ease ' 31 The petitioner’s objection that an appeal to the same tiei ot Military hieraichy would not fulfill the lequuements ot the dictates of Qui'an and Sunnah, drew our attention to the decisions of out Supieme Court Shanat Appellate Bench in the case ot Pakistan Vs

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General Public (PLD 1989 SC 1) in which while examining this question, it was held

“In fact these two countnes (UK & USA) have gone to the extent of appointing civilian Judges for heanng appeals against the orders of Courts Martial But we would not expiess any opinion on that point and considei that even if the Couits of Appeal provided for healing appeals against the decisions ot the Court-martial, who aie sentenced to Hadd under the Islamic Law. are empowered to hear appeals against the convictions toi other serious offences, the detect would stand lemoved "

32.Further in the case of Pakistan Vs Geneial Public, Supieme Court Shariat Appellate Bench (supra) it was held “No doubt, m the laws governing all the three Defence Services, a remedy is provided to the aggrieved peisons who aie convicted by a Court-Martial namely they may present a petition against the order to the Cential Government oi the Head of the armed force concerned, and these authorities may thereupon review the finding oi the sentence oi the both But this remedy cannot be equated with the lemedy of appeal Herein, the aggrieved party has not onl) the right to piesent a petition to challenge the Older ot which he is aggi leved but has

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also the right to appeal before the Appellate Comt and to be heard

33 Since this question has been elaboiately discussed m the above- named case there is no room for further deliberation We cannot go behind tins decision

34 Time and again Sardar Abdul Majid and learned counsel toi the respondents reminded us that clause (3) of Article 199 ol the Constitution places an embargo on the High Court to pass any oidei inter cilia m respect of action taken against a person who is sub|ett to law of drmed forces of Pakistan We were also reminded that we do not possess powers such as enjoyed by the Supieme Comt ot Pakistan under Article 184 (3) of the constitution However once it is hi ought to our notice that any law oi piovision of law is lepugnam to Qm'an and Sunnah we are empowered under Aiticle 203 D of the Constitution to declare it so This will covei cases wheie such law m

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44 S P N 0 4 /I/IW

provision of law suffers from omission or absurdity or result into palpable injustice within the meaning of Holy Quran and Sunnah 35 No doubt it is impeiative that we take into account the learned views expiessed by acknowledged scholars, jiuists and judges ot the past and piesent day on the subject mattei piovided they have nexus with Qu’ian and Sunnah The Supreme Court of Pakistan m PLD 1986 S C Shariat Appellate Bench 240 had held

i “Regarding interpolation, although it might be possible to lely on those veises which poitray the Holy Qur'an and the Sunnah as organic entity capable ot meeting the glowing needs of all time to come like a glowing expanding tree, it would not be permissible to exercise such free imagination to the extent that the nexus with the two holy sources is lost "

A n d fu r th e r

"While expounding the Injunctions ot Islam a possibility ot some marginal so-called divergencies might be visualized It is a very difficult and perilous exeicise it can lead to propci and impiopei consequences Be that as it may, no such expounding of the Injunctions of Islam will be permissible which docs not

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pay attention to the statement of the text of the Holy Qui \tn and Sunnah and to its interpretation togethei with its Khanm and Zamii ”

36 What was not uiged before us was the light of the convict to appeal either in person or through his counsel betoie the appellate juthonty of the three Defence Services The Supieme Comt Shanat Appellate Bench in the above-named judgment had held ‘that the aggrieved party has not only the light to piesent a petition to challenge the order ot which he is aggneved but has also the right to appeal ) w

before the appellate court and to be heaid' The right to appeal and heard has been provided undei Rule 195 of the Pakistan Aimy Rules, 1954, undei Rule 313 of Pakistan Navy Rules 1961 and Rule 236 ot Pakistan Air Force Rules, 1957

37 During the course of arguments we asked learned counsel/representatives of Aimed Foices to furnish us the toiinat ot judgments given by court-martial as communicated to the accused persons in response to which Pakistan Aimy had submitted the

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judgments/findings given by it against one LtCol Munu Ahmed as under

SCHEDULE

Dated 24'1' Febiuaiy 1999

PaiUculais ot the offender PA-14067 L( Col M umr Ahmed Gill ASC Die Gen Piocurem cul, at Sla HQ Rawalpindi

O tle n c _ (_ c h . n g t d l’lc.1 1 m d iiK ' S C H lU k c R vuseJ C o n lii m Fultlm^ MiiiuU

.iiuJ s « .n iu iu .

II) (2) (V 141 (A ) ((W

Fust C haise PAA See 55 Conduct to the pieiudice Not of good older and mil discipline guil Guilty »y In that he, at Rawalpindi, diu mg Nov Dec 96 impropcily borrow ed Rs 100,000/- (Rupees One Lac only) from PA 14372 Col Iitikhai Ahm ed of Dtc Gen National G uaids. GHQ Second C harse Not PAA Sec 55 Conduct to the piejudice of guil Guilty good order and military discipline ty

in that he.

at Rawalpndi Feb-July97 improperly asked M ian M uham m ad Arshnd S/O M in Taj Dm ol M essets Pak Trader*. Faisalabad to extend a loan of Rs 200 000/- (Rupees tw o lacs only) to his (accused) relative namely Mi Zahid Iqbai

Third C haise Conduct to the oieiudice of Not PAA Sec 55 good ordei and m ihlaiy guit Guilty discipline.

ty In that he.

A t Raw alpndi. during Feb-Jul 97. im piopeily asked M alik M uhamm ad Aslam S O MahL M uhamm ad Zakir o f Naveed Tradeis Faislabad to extend a loan ol Rs 200 000/- (Rupees two Lacs only) to his (accusedO to Ins relative namely Mr Zalud Iqbal a.

Foiulh charsc Conduct to the tnciudice ol Not rigorous PAA Sec 55 good ordei and military guil Guilty imprison

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discipline ty ment

m that he. To suttei at Rawalpindi on 30 Sep 96. im piopeily RI toi filed his Tax Returns foi (lie year 96-97. by one yeai declaung his salaiy as sole souice of income, well knowing that he had income fiom the b_ sources othei than his salary Dismissal.

To he dismissed from the service Rccomme ndalion ot meicy Place Rawalpindi Cpmd Rw p Log Area Judge Advocate L tC o i Dalcd 24Feb99 (M uham m ad Siddiq) (M uhammad Anw ai) Picsidem FGVM Dated 22 6 99 (Kiialid Saeed Zatai) Dated 22 June 1999 "1 do not confnm the finding of the court on the first second and third charges I \a iv the dale o f olfcnce on fourth chaige as 25 Sep 96 instead of 30 Sep 96 and conlum the hading so vaned on the said charge but leserve the sentence tor confirmation b> the COAS S d/xx\ Cop> R w p L o g A i e a

38 On our queiy, we were told by the lespondeuts counsel/repiesentatives that an accused peison is mfonned of the result of his trial as above but he is neithei supplied copies ot judgment nor of deposition ot witnesses and other document tiom the lecoid to which our next query was on what basis a convict peison would prefer an appeal before the appellate authority Then leply was that the appellate authority itself would go through and sciutimze the judgment of Court Martial and aftei appiatsmg the ewdence and

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47 S P N 0 4 /I /N O ’,

recoid ot the case the appellate authority would either confirm oj set aside or modify its judgment This drove us home to take suo motu action undei Aiticle 203-D of the Constitution ot Islamic Republic of Pakistan as to whether non-supply of copies of judgment and other documents of Court Martial wheieby an appellant is denied light to raise ground of appeal against his conviction would be in violation of injunctions of Islam

39 According to Black's Law Dictionary (Eighth Edition) judgment means “A Court's final deteimutation of the lights and obligations of the parties in a case"

40 The term judgment is not defined either m cnminal pioccduie Code oi in the Pakistan Penal Code Section 366 ol Code ol cimunal proceduie 1898 has desuibed the mode ot delivering ot judgments and states that the substance of such judgment shall be explained Section 367 of Cr P C describes the contents of judgment accoiding to which, the piesidtng officer of the Court shall write the judgment in

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the language of the Court and shall contain the points toi deteinnnation and shall be signed by the piesiding ofhcei in open Court at the time of pronouncing it The judgment shall speutv the offence of which, and the section of the Pakistan Panel Code oi otliei law under which the accused is convicted, and the punishment to which he is sentenced The Sindh High Court had held that the provision is mandatory and its purpose is to let it be known to die accused that the dial judge consciously applied his mind to give a finding against him (Muhammad Ramzan Vs The State, NLR 1084 Cr 425)

41 In 2004 AC 385 the Supreme Couit had held

"It is a cardinal punuple ot law that judgment must be speaking one, so its leader may understand with clanty. the reasons foi which conviction or sentence has been maintained Judgment of High Court which does not put foi waid reasonable com mi mg and acceptable giotinds to understand as to why convietion/sentence was maintained would not be sustainable in the eye ot law ”

42 In the case of JALIL ALIAS JALIL-UD-DIN ALIAS JALLO and others Vs THE STATE (PLD 1966 S C 971) the Supieme Court of Pakistan had held “A judgment written without discussing the evidence of witnesses or the circumstances appearing in conoboiation of their evidence and without giving any cogent leusons foi discarding the evidence of witnesses and the conoboiative circumstance, is not a proper judgment "

43 The Federal Shanat Court had held m a number of vases that judgment of the trial Court must contain theiein sufficient details qua facts of the case, points foi determination decision theieon and reasons for the decision ( Khalid Mahmood Vs The State 2004 SD 806, PLJ 2004 FSC 66, Khahd Mehmood Vs The State SBLR 2004

FSC 63)

44 Learned counsel/representative ot the respondents conceded befoie us that in Court Martial, the Judge/Presiding Officei would announce ‘Guilty' or ‘not Guilty' after the conclusion ot Couit

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Maitial proceedings, i e the operative part of the judgment Howevei in the legal pailanee eveiy judgment shall be based upon evidence backed up by reasons leading to conclusion and opeiative patt They turthei stated without any reservation that every judgment of C'omt Martial is in wilting which appiaises the evidence and othei mateual on iecord and embody leasons therein tor conviction or acquittal ot the accused peison Howevei they frankly admitted that as pci practice neithei copy ot judgment ot othei iecoid is supplied to an appellant/accused person We fail to undeistand why it is so We ourselves have gone through the Rules of the thiee Defence Foices and find that under Rule 188 ot the Pakistan Army Rules 1954 undei Rule 193 of the Pakistan Navy Rules and under Rule 230 ot Pakistan An Force Rules 1951 a person awaided Hadd sentence is entitled to a copy of trial proceedings which shall be piovided giatis on announcement ot his conviction But the said Rules ot the Pakistan Aimy Act and Pakistan Air Foice Act do not piowde piocedmc legarding supply ol a copy ot tual pioceedtngs to a peison awaided

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Non-Hadd sentence which amounts to non-implementation ot the directions given by this Comt reported in 198? F S C 36? {supra) Accoidingly we have no hesitation in our minds to state that non­ supply of copy of judgment, deposition and othei lecord ot the case to a convict person/dppellant would tantamount to denial ot (iistice to him as he will not be in a position to turmsh grounds to assail his conviction in appeal Similaily it is his basic right to be heaid eithei in person or thiough his counsel by the appellate authonty as was held in Pakistan vs General Public (supra) We may add heie that since right of appeal is a substantive nght. the denial ot copy ot judgment and of hearing in appeal would amount to denial of the substantiv e nght resulting into injustice on the touchstone of Quran and Sunnah ot Holy Prophet (Peace be upon Him). Accordingly we ducet the Fedeial Government to take necessary steps within six months foi amendment of Rules of the Pakistan Army Act 1954 and Pakistan Air Foice Act Rules 1957 ensuring supply ot judgment, depositions and othei lecoid of the case to all the peisons to whom sentence has been awaided

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whether under Hadd or not, except petty punishment cases which may be made subject to revision only ''

JUSTICE HAZIQUL KHAIR1

CHIF JUSTICE

JUSTICE DR TIDA MUHAMMAD K H ^

JUSTICE SALAHUDD1N M1RZA

f Aw X A','**

JUSTICE MUHAMMAD ZAFAR VASIN

JUSTICE SYED AFZAL HAIDER

Announced on Z-3-XOO& , at ^ Hr Daud/M .r ./i ./

V / a"'