The Judge Advocate General (JAG) branch through the Attorney General for Pakistan (AGP) office submitted a parawise reply on the petition filed by the military officer against his conviction.
Giving a background of the case, the reply stated that the “petitioner was a retired senior officer of Pakistan Army and being a person subject to the Pakistan Army Act (PAA), 1952, under the provisions of Section 2(1)(d) read with Section 59 (4), was indicted on six charges for espionage”.
“The petitioner pleaded ‘partial guilty’ to the first, third, fourth, fifth and sixth charges, whereas, he pleaded ‘not guilty’ to the second charge. However, as per [the] provisions of PAA and rules made thereunder, [the] pleas of the accused were altered to ‘not guilty’ by the trial court (Field General Court Martial) [which] afforded him a regular/fair trial.”
However, on conclusion of the trial, the court adjudged him ‘guilty’ of all the charges and awarded him the sentence of rigorous Imprisonment for 14 years on May 29, 2019.
“The petitioner preferred an appeal before the Army Court of Appeals, wherein, the said court, on May 25, 2021, remitted seven years rigorous imprisonment out of 14 years rigorous imprisonment awarded by the trial court and extended him due allowance of period spent by the petitioner in military custody in the light of the PAA Rule 53.”
Moreover, the petitioner confessed his “guilt” in his judicial confessional statement before an Islamabad first class magistrate. He also appeared before the Field General Court Martial (FGCM) and recorded his statement. He was also subjected to cross-examination by the private defence counsel of the petitioner.
The reply stated that the FGCM had tried the petitioner duly in accordance with the law.
“The court had appreciated the available evidence and reached a verdict In the light of the judicial powers conferred upon it. Therefore, deliberating on the details of such sensitive evidence at this stage would amount to prejudice the safety and security of the State.”
Moreover, it was submitted that the interim relief in the form of suspension of the sentence would jeopardise the security and interest of the State.
“The petitioner remained on highly sensitive posts while serving in the Pakistan Army and his suspension of the sentence would endanger the State’s security/secrets. Further, the case before this court is an extraordinary sensitive in nature and the petitioner’s own life would be at risk as anti-state elements might harm him for their nefarious designs.”
The reply stated that this would also set the wrong precedent to set free the convicts involved in espionage activities.
It is re-emphasised that the petitioner’s confinement in jail was not only in the interest of the State but also for his own life.
“Also, the provisions of Code of Criminal Procedure, 1898 are not applicable in the instant case. The petitioner has been tried and convicted under the Pakistan Army Act, 1952 and Rules made thereunder, which is a special law and there is no such provisions and precedent provided for suspension of sentence awarded by the FGCM in espionage cases.”
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The defence authorities have denied that convicted military officer was tortured or subjected to any derogatory treatment.
The reply stated that the petitioner was charged under the provisions of Section 59 of the PAA and was afforded a fair trial wherein, he was duly represented by a defending officer.
Moreover, upon the petitioner’s request and keeping in line with the institution’s tradition of beneficence, the petitioner was allowed further representation by a civil defence counsel of his choice namely Muhammad Wasif Khan advocate, who is a retired brigadier and also served in Judge Advocate General’s Department at his time.
It is also stated that the mercy petitions are governed under the provisions of section 143 of the PAA wherein the petitioner accepts his guilt.
The petitioner has provided his detailed stance during the trial starting from April 15, 2019 to May 2, 2019 with six adjournments provided to him on his request to deliberate upon his version in the light of the principles of fair trial, read the reply.
Raising several objections on the maintainability of petition, the government said that if a citizen, who included a person performing functions in connection with the affairs of the State, did not obey constitutional commands, they were not performing his obligation imposed by the Constitution.
“The first duty of the citizens of the country was loyalty to the State and if a person commits any offence against the State, then he is not entitled to the protection of fundamental rights and is liable to be prosecuted and dealt with in accordance with law enforced for the purpose”
The reply stated that the petitioner uselessly tried to rely on certain media reports which had no concern with the present case.
