PESHAWAR: The Peshawar High Court has declared petitions of the convicts of military courts maintainable and ruled that those people could approach it under the Constitution for relief against sentences.
A bench consisting of Justice Wiqar Ahmad and Justice Sadiq Ali observed in a verdict that the existence of an alternate remedy — filing appeal under the Army Act — was not an absolute bar to exercise constitutional jurisdiction of the high court.
Referring to the May 7, 2025, short order of the Supreme Court’s Constitutional Bench in the military courts cases, the bench pointed out that the apex court had held the same remedy (appeal under Army Act) to be inefficacious and for that reason, the federal government was directed to make necessary legislation for providing a right of appeal before the respective high courts.
“Additionally, it has already been clarified that individual cases/writ petitions if pending or filed before the High Courts for challenging vires of orders passed by Anti-Terrorism Court allowing transfer of cases or custody of an accused for military trial should be decided by the High Courts on its own merit,” the bench observed.
Declares convicts have right to court martial records
The bench issued the order while declaring a petition jointly filed by three convicts of a military court, who were sentenced to 10-year rigorous imprisonment for attacking military places during the May 9-10, 2023, violent protests in Mardan district.
It sought comments within a fortnight from the respondents including the federal secretaries of defense and interior and the relevant Field General Court Martial (FGCM) through its chairperson and the concerned brigadier commander.
The petitioners, including Adnan Ahmad, Rehmatullah and Shakirullah, have requested the court to set aside their conviction and sentences awarded by the FGCM and its confirmation by the concerned brigadier commander, as the same was unconstitutional and arbitrary.
The petitioners claimed that without recourse to the basics of the Constitution and inherent safeguards stipulated within the Pakistan Army Act, 1952 and Pakistan Army Act Rules, 1954, they were tried by the FGCM at Peshawar from Oct 6 till Dec 30, 2023, and consequently they were convicted.
A deputy attorney general Atif Nazir had contended that the petition was not maintainable and may be dismissed by the court. He contended an alternate forum was available to the petitioners, but they had failed in filing an appeal within the required 40 days.
Barrister Amir Khan Chamkani, representing the petitioners contended that the said remedy of filing appeal before Chief of the Army Staff had already been held to be inefficacious by the SC in its order of May 7, 2025. He stated that regarding individual cases/ writ petitions pending or to be filed before a high court, the same were to be decided by the high court on its own merit.
The bench observed that the remedy of appeal under section 133 (B) of Pakistan Army Act was time bound and the same was no longer available after expiry of the limitation period of 40 days.
The bench quoted several paras from the May 7 judgement of the apex court in support of its order.
The bench ruled that this court as a constitutional court couldn’t abdicate its jurisdiction particularly when such jurisdiction had also been held to be available in cases such as convictions in the case “Brigadier (retd) FB Ali versus The State.”
Record of FGCM Proceedings: In its six-page detailed order, the bench also discussed the issue of non-provision of record of proceedings to the petitioners, observing that under Rule 130 of the Pakistan Army Act Rules, every person tried by a court martial had been declared entitled to obtain a copy of proceedings against payment of prescribed fee.
The petitioners had requested for them to provide them with records of FGCM proceedings, including summary of evidence, in their cases as well as order of conviction.
“Only one exception has been provided i.e., where in the opinion of the Chief of Army Staff, supply of any proceedings or part thereof may be prejudicial to the safety or interests of the State,” the bench observed.
It pointed out that the DAG could not produce any order from the COAS that he had withheld delivery of copies to petitioners in the present case for the reason of same being prejudicial- to the safety or interest of the State.
The lawyer for petitioners claimed that his clients had been tried for civil offence and not in offence relating to security of Pakistan.
The bench ruled that it was also constitutional right of petitioners enshrined in Articles 4, 9,10-A and 19-A of the Constitution, that they be allowed copies of proceedings of the trial where-under they had been convicted.
It directed the respondents to annex all such records with their comments, where petitioners would be allowed to obtain copies.
Published in Dawn, July 13th, 2025
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