The Supreme Court of Pakistan on Tuesday ruled that suspects being tried under the Pakistan Army Act can be convicted for an alternative offence in case the main charges are not proven.
The 27-year-old case is significant not because it links to a former prime minister, but that the verdict in it could have implications for those who face trials under the same law today.
A three-member bench of the apex court, headed by Chief Justice Umar Ata Bandial and comprising Justice Munib Akhtar and Justice Mazahir Ali Akbar Naqvi, on Tuesday decided on appeals filed by two army officers who had been dismissed from service after being convicted under the Pakistan Army Act.
The appellants, two army officers, Muhammad Azad Minhas and Inayatullah Khan, were accused of having knowledge about a conspiracy against slain prime minister Benazir Bhutto's government and failing to report this information to the relevant authorities. They were adjudged to have displayed conduct against good order and military discipline.
In their appeals, they contended that in addition to the major penalty of dismissal from service, their perks, privileges, and benefits of being officers (including allotment of rank-linked immovable benefits under various army schemes), were withdrawn. The former army officers contended that this was tantamount to double jeopardy and thus illegal. They had urged the court to reverse this.
The court had reserved its judgment in the case on February 15, 2022, and announced its verdict on Tuesday, more than 18 months later.
The verdict noted that the intelligence agencies took the two officers into custody along with two others. A thorough investigation was conducted thereafter on the various charges imposed on them under the Pakistan Army Act 1952.
The officers were convicted, and their conviction was confirmed by the then-chief of army staff on October 10, 1996. Following thier conviction and dismissal from service, their membership in the Army Officers Housing Scheme for allotment of a house upon their retirement, along with allotment of plots in the Army Welfare Housing Scheme, were ordered to be cancelled.
Subsequently, in their appeal, the two officers contended that they could not be simultaneously accused of alternate charge(s)/offence(s) when they were accused of a principal offence.
In the 17-page verdict, which Justice Mazahir Ali Akbar Naqvi penned, the court decided the appeals on five legal questions framed during the case.
These legal questions include whether an accused can be convicted for an alternative offence, which is proven, and whether an officer dismissed from service following a conviction is entitled to the perks and privileges reserved for Army personnel.
The top court ruled that the concept of alternative charge is not alien under the 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," the court noted.
A review of their charge sheet showed that both the appellants/petitioners were not only charged for the main offence but also alternative charges/offences and that it was well within the knowledge of both, the top court observed.
"It is now well settled without a second thought that if an accused (under Army Act) is charged with one offence but from the evidence it appears to have committed a different offence for which he might have been charged under the said provisions of law, he may be convicted for the offence if he is found to have committed it, although he was not charged with the same," the judgment read.
The court added that evidence produced against the petitioners on every forum was sufficient to convict them.
"All courts, after evaluating the evidence led by the prosecution, found that the main offence could not be proved against them, but as there was sufficient evidence to sustain their conviction under the alternative charge, hence, they were convicted accordingly," the judgment stated.
The court noted that when the appellants/petitioners had filed Constitutional petitions before the court in 1996. However, the charge in question had been framed against them at the time, but they never raised an objection against it before any court -- including the Supreme Court -- at that juncture. Instead, the court noted, the appellants/petitioners failed to bring on record an iota of material in their defence except the objection at a belated stage. The court added that the objection had no legal value in the eyes of the law.
"The concept of conviction under alternative charge in the absence of conviction under the main charge is a well-established/recognized principle of the criminal justice system as provided in Sections 236 to 240 of the Code of Criminal Procedure," the top court stated.
Even this aspect is not absolute, the court noted, adding that even in the absence of any alternative charge, the petitioners can be convicted for any offence if it covers the "ingredients of the said offence".
Regarding the cancellation of perks and benefits upon their unceremonious dismissal from services, the top court observed that it is settled law that upon being dismissed from service revokes all the perks, privileges and amenity services an army officer is due once they are inducted into the force.
"All these benefits are subject to service, and any action contrary to service structure takes away not only perks and privileges rather the privilege of salary, pension, gratuity, etc. for which he was otherwise entitled," the judgment said.
"There is no second cavil to this proposition that after dismissal from service, the appellant/petitioner cannot claim any benefit because of the reason that their termination was in pursuance of the defiance of the discipline and order of the institution discretely."