CONSPIRACY TO TOPPLE BENAZIR’S GOVT IN 1995.

ISLAMABAD  -  The Supreme Court of Paki­stan on Tuesday upheld the sentences of two former mil­itary officers involved in the 1995 conspiracy to overthrow the government of slain for­mer prime minister and Paki­stan Peoples Party (PPP) lead­er Benazir Bhutto. 

A three-member bench of the apex court headed by Justice Umar Ata Bandial and com­prising Justice Munib Akhtar and Justice Sayyed Mazahar Ali Akbar Naqvi announced its judgment, on the ap­peals of Colonel (retd) Azad Minhas and Colonel (retd) Inayatullah Khan, which was reserved on February 15. The field court martial had sen­tenced Azad to two years and Inayatullah to four years of imprisonment with hard labour and dis­missal from service. 

The judgment, authored by Justice Sayyed Maza­har Ali Akbar Naqvi, said that before invoking the jurisdiction of this Court or the High Court, the test to pass is strictly confined as to whether the order/sentence passed during Court Martial is suffering from mala fides, without jurisdiction and coram non judice. In absence of any mala fide on the part of the prosecution, the conviction and sentenc­es awarded to the appel­lant/petitioner by the Field General Court Mar­tial cannot be stamped to be coram non judice, which otherwise is a rare phenomenon.

He added that in Sha­hida Zaheer Abbasi case mentioned supra, this Court after thoroughly an­alyzing the provisions of Pakistan Army Act, Paki­stan Army Rules and the 1973 Constitution has candidly reiterated while holding that the “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 grounds of its consistency with the provisions contained in Chapter I of Part II of the Constitution.

The apex court said, “Rules of procedure appli­cable for trial of a person in a criminal case before a Military Court do not vio­late any accepted judicial principle governing trial of an accused person. Pro­cedure prescribed for trial before Military Courts is in no way contrary to the concept of a fair trial in a criminal case.”

The judgment said that in District Bar Association Vs. Federation of Pakistan (PLD 2015 SC 401) and it was held that the pro­visions of Pakistan Army Act cannot be invalidat­ed for offending against fundamental rights in­cluding Article 25 of the Constitution. Similarly, Article 10-A also cannot be pressed into service to challenge the provisions of Pakistan Army Act, 1952.

It further said that re­garding whether an ac­cused person under the Pakistan Army Act can be convicted for an alter­native charge/offence in case the principal charge/offence is not proved. The judgment said that the concept of alternative charge is not unknown in the sphere of Pakistan Army Act. Sections 111(5) of the Pakistan Army Act and Rules 21(4) and 51(7) & (8) speak about the framing and punish­ment of an accused un­der alternative charge/offence. It continued that the bare perusal of the charge sheet reveals that both the appellant/pe­titioner were not only charge sheeted for the main offence but also for the alternative charges/offences and it was well within the knowledge of both of them.

The SC maintained that it is now well settled that if an accused is charged with one offence but from the evidence it appears to have committed a differ­ent offence for which he might have been charged