IN THE SUPREME COURT OF PAKISTAN 
  
 
(Appellate Jurisdiction) 
 
 
 
PRESENT: 
 
 
MR. JUSTICE ANWAR ZAHEER JAMALI, CJ 
 
 
MR. JUSTICE AMIR HANI MUSLIM 
 
 
MR. JUSTICE SH. AZMAT SAEED 
 
 
MR. JUSTICE MANZOOR AHMED MALIK 
 
 
MR. JUSTICE FAISAL ARAB 
 
 
CIVIL PETITIONS NO.842 OF 2016, 3331, 3332, 
3674 & 3777 OF 2015, 06, 32, 211, 278, 417, 1263, 
1306, 1335, 1353, 1503 AND 1541 OF 2016 
(On appeal from the judgment dated 26.01.2016 Lahore High 
Court, Rawalpindi Bench in WP No.05/2016, judgment dated 
14.10.2015 of the Peshawar High Court, Peshawar passed in WP 
No.2915/ 2015, judgment dated 14.10.2015 of the Peshawar 
High Court, Peshawar passed in WP No.2979 of 2015, order 
dated 09.12.2015 of the Peshawar High Court, Peshawar passed 
in WP No.3219-P/2015, order dated 09.12.2015 of the Peshawar 
High Court, Peshawar passed in WP No.3076-P/2015, order 
dated 09.12.2015 of the Peshawar High Court, Peshawar passed 
in WP No.(HCP) No.3878-P/2015), order dated 23.12.2015 of the 
Peshawar High Court, Peshawar passed in WP No.4433-P/2015, 
order dated 27.01.2016 of the Lahore High Court, Rawalpindi 
Bench passed in WP No.197/2016, order dated 19.01.2016 of 
the Peshawar High Court, Peshawar passed in WP No.133-
P/2016, judgment dated 12.4.2016 of the Peshawar High Court, 
Peshawar passed in WP No.1048-P/2016. judgment dated 
12.4.2016 of the Peshawar High Court, Peshawar passed in WP 
No.1184-P/2016, judgment dated 12.4.2016 of the Peshawar 
High Court, Peshawar passed in WP No.1190-P/2016, order 
dated 19.01.2016 of the Lahore High Court, Rawalpindi Bench 
passed in WP No.117/2016, judgment dated 12.4.2016 of the 
Peshawar High Court, Peshawar passed in WP No.1271-P/2016, 
order dated 12.5.2016 of the Lahore High Court, Bahawalpur 
Bench passed in WP No.3315 of 2016 respectively)     
 
 
1. 
Said 
Zaman 
Khan 
v. 
Federation of Pakistan through 
Secretary Ministry of Defence, 
Government 
of 
Pakistan 
Superintendent HSP, Sahiwal 
 
  
 
 
(In CP No.842/2016) 
2. 
Mst. Bacha Liaqa v. Federation 
of Pakistan through Secretary, 
Ministry of Interior, Islamabad 
and others  
  
 
 
(In CP No.3331/2015) 
CPs.842/2016, etc. 
2 
 
3. 
Mst. Anwar Bibi v. Federation 
of Pakistan through Secretary, 
Ministry of Interior, Islamabad 
and others 
 
  
 
 
(In CP No.3332/2015) 
4. 
Ali-ur-Rehman v. Government 
of Pakistan through Secretary 
Defence, Ministry of Defence 
Rawalpindi and others  
 
  
 
 
(In CP No.3674/2015) 
5. 
Mst. Nek Maro v.  Special 
Military Court and others  
 
  
(In CP No.3777/2015) 
6. 
Sakhi Muhammad v.  Special 
Military Court and others 
 
  
(In CP No.06/2016) 
7. 
Sher 
Alam 
v. 
The 
Superintendent, District Jail 
Timergarah, District Dir Lower 
and others  
 
  
 
 
(In CP No.32/2016) 
8. 
Mashooqa 
Bibi 
v. 
The 
Superintendent, District Jail 
Temergara District Dir Lower  
 
  
 
(In CP No.211/2016) 
9. 
Mr. Javed Iqbal Ghauri v. 
Federation of Pakistan through 
Secretary Ministry of Defence, 
Rawalpindi and others  
 
  
 
 
(In CP No.278/2016) 
10. 
Mohibullah v. Government of 
Pakistan 
through 
Secretary 
Defence Ministry of Defence, 
Rawalpindi and others  
 
  
 
 
(In CP No.417/2016) 
11. 
Fazal Ghaffar v. The State 
through 
Deputy 
Attorney 
General 
for 
Pakistan 
and 
others  
 
  
 
 
(In CP No.1263/2016) 
12. 
Mst. Zarba Khela v. Federation 
of Pakistan through Secretary 
Defence, Islamabad  
 
  
 
(In CP No.1306/2016) 
13. 
Ajab 
Gul 
v. 
Federation 
of 
Pakistan 
through 
Secretary, 
Ministry of Interior, Islamabad 
and others  
  
 
 
(In CP No.1335/2016) 
CPs.842/2016, etc. 
3 
 
14. 
Aqsan Mahboob v. Federation 
of Pakistan through Secretary, 
Ministry 
of 
Defence, 
Government of Pakistan  
  
 
 
(In CP No.1353/2016) 
15. 
Khan Afsar Khan v. SHO Police 
Station 
Bugnotar, 
District 
Abboottabad and others  
 
 
 
(In CP No.1503/2016) 
16. 
Hafiz 
Muhammad 
Sadiq 
v. 
Government 
of 
Pakistan 
through 
Secretary 
Defence, 
Ministry of Defence  and others  
 
  
 
 
(In CP No.1541/2016) 
For the Petitioners  
 
: 
Ms. Asma Jahanghir, ASC 
Ch. Akhtar Ali, AOR 
(in CPs Nos.3331/2015, 3332/2015,  
32, 211, 1335 & 1503/2016) 
 
 
Abdul Latif Afridi, Sr. ASC 
and Khalid Anwar Afridi, ASC 
(in CPs Nos.3674, 3777/2015  
& 278/2016) 
 
 
Malik Muhammad Akram, ASC 
Ch. Akhtar Ali, AOR 
(in CP No.842/2016) 
 
 
Mr. Mehmood Raza, ASC 
Ch. Akhtar Ali, AOR 
(in CP No.417/2016) 
 
 
Sahibzada Ahmed Raza Khan Qasuri, 
Sr. ASC 
Mr. Ahmed Nawaz Ch. AOR (Absent) 
(in CP No.1263/2016) 
 
 
Mr. Khalid Anwar Afridi, ASC 
Haji Muhammad Zahir Shah, AOR 
(in CP No.06/2016) 
 
 
Mr. Laiq Khan Swati, ASC 
Syed Rafaqat Hussain Shah, AOR 
(in CP No.1306/2016) 
 
 
Col (R) Muhammad Akram, ASC 
Ch. Akhtar Ali, AOR 
(in CP No.1353/2016) 
 
 
Sardar Muhammad Shahzad  
Khan Dhukhan, ASC 
Syed Rafaqat Hussain Shah, AOR 
(in CP No.1541/2016) 
CPs.842/2016, etc. 
4 
For Federation  
(On Court’s notice) 
: Mr. Ashtar Ausaf Ali, AGP 
Syed Attique Shah, Addl. AGP 
Mr. Sajid Ilyas Bhatti, DAG  
assisted by  
Barrister Asad Rahim Khan,  
Consultant to AGP 
Major Asad, JAG Branch 
(in all cases) 
For Govt. of KPK 
: Mian Arshad Jan, Addl. AG 
Mr. Tahir Saleem, SHO, Bagnoter  
(in CP No.1503/2016) 
Mr. Iqbal Ahmed Durrani, 
Standing Counsel, FATA 
Date of hearing  
: 13th, 14th  and 20th June, 2016 
 
 
 
 
 
JUDGMENT  
 
 
 
SH. AZMAT SAEED, J.- This judgment is 
proposed to decide Civil Petitions for Leave to Appeal 
Nos.842 of 2016, 3331, 3332, 3674 and 3777 of 2015, 
06, 32, 211, 278, 417, 1263, 1306, 1335, 1353, 1503 
and 1541 of 2016. 
2. 
 
Civil Petition for Leave to Appeal No.842 of 
2016 is directed against the Order dated 26.01.2016 of 
the learned Lahore High Court, Rawalpindi Bench, 
whereby a Constitutional Petition i.e. Writ Petition 
bearing No.5 of 2016, filed by Mst. Momin Taj, mother of 
the present Petitioner, was dismissed. 
3. 
 
The brief facts as narrated in the Petition are 
that the Petitioner was allegedly taken into custody by 
the Military Intelligence on 10.12.2014 from Kurri Road, 
Rawalpindi and despite best efforts his whereabouts 
CPs.842/2016, etc. 
5 
could not be ascertained by his family. In October, 2015, 
the family of the Petitioner was informed through an 
unknown telephonic call that the Petitioner was 
confined in Adyala Jail, Rawalpindi and he had been 
awarded a death sentence by a Field General Court 
Martial (FGCM). The Petitioner’s Appeal filed through the 
Jail before the Court of Appeal, constituted under the 
Pakistan Army Act, 1952 as well as his Mercy Petition to 
the Chief of Army Staff, was rejected. Thereafter, the 
Petitioner sent a Mercy Petition through the Jail to the 
President of Pakistan, which is allegedly pending.  
4. 
 
In the above backdrop, the Petitioner’s mother 
(Mst. Momin Taj) challenged his conviction by invoking 
the Constitutional Jurisdiction of the learned Lahore 
High Court, Rawalpindi Bench by filing Writ Petition 
No.5 of 2016, which has been dismissed vide the Order 
impugned dated 26.01.2016. However, instead of 
Petitioner’s mother, he himself has approached this 
Court by filing the instant Civil Petition for Leave to 
Appeal.  
5. 
 
Civil Petition for Leave to Appeal No.3331 of 
2015 
is 
directed 
against 
the 
judgment 
dated 
14.10.2015, passed by the learned Peshawar High 
CPs.842/2016, etc. 
6 
Court, whereby a Constitutional Petition i.e. Writ 
Petition No.2915 of 2015, filed by the present Petitioner, 
was dismissed.  
6. 
 
The brief facts necessary for disposal of the 
instant Petition are that the Petitioner invoked the 
Constitutional Jurisdiction of the learned Peshawar 
High Court, Peshawar through Writ Petition bearing 
No.2915 of 2015, contending therein that his son Haider 
Ali was taken into custody on 21.09.2009 when he was 
a student of Class 10 on being produced by the 
Petitioner’s husband before the Law Enforcement 
Agencies, as directed. It was contended that the 
Petitioner was not informed about the whereabouts of 
her son Haider Ali. Eventually through a news item in 
the daily Mushriq dated 03.4.2015, it was discovered 
that her son Haider Ali had been convicted by a FGCM 
and sentenced to death. Through the Writ Petition, the 
conviction and sentence of the Petitioner’s son was 
called into question. The said Petition was heard and 
eventually dismissed vide judgment dated 14.10.2015, 
which has been impugned through the instant Civil 
Petition for Leave to Appeal. 
CPs.842/2016, etc. 
7 
7. 
 
Civil Petition for Leave to Appeal No.3332 of 
2015 is directed against the impugned judgment dated 
14.10.2015 of the learned Peshawar High Court, 
Peshawar, whereby Constitutional Petition i.e. Writ 
Petition No.2979 of 2015, filed by the present Petitioner, 
was dismissed. 
8. 
 
The brief facts of the instant case are that the 
Petitioner filed a Constitutional Petition before the 
learned Peshawar High Court, Peshawar   contending 
therein that the Petitioner’s son Qari Zahir Gul was 
taken into custody by the Law Enforcement Agencies on 
27.04.2011 from an Internal Displaced Persons (IDPs) 
Camp, whereafter his whereabouts were kept secret 
from the present Petitioner. In the above circumstances, 
his other son Waheed Gul filed Writ Petition No.815-P of 
2012 and later Writ Petition No.1976 of 2014 before the 
learned Peshawar High Court seeking production of Qari 
Zahir Gul. During course of the aforesaid proceedings, it 
was 
contended 
that, 
it 
was 
disclosed 
by 
the 
Respondents that the Petitioner’s son had been detained 
under Actions (In Aid of Civil Power) Regulations, 2011. 
Subsequently, in April, 2015, the Petitioner through the 
CPs.842/2016, etc. 
8 
press learnt that his son Qari Zahir Gul had been tried 
by a FGCM and convicted and sentenced to death.  
9. 
 
In the above backdrop, the said Constitutional 
Petition i.e. Writ Petition No.2979 of 2015, was filed by 
the Petitioner challenging the conviction and sentence of 
his son Qari Zahir Gul awarded by the FGCM. The wife 
of Qari Zahir Gul had also brought the matter before 
this Court by filing Constitution Petition No.50 of 2015, 
which was disposed of vide Order dated 07.10.2015 by 
directing her to approach the learned Peshawar High 
Court. Eventually, the learned Peshawar High Court 
dismissed the aforesaid Constitutional Petition filed by 
the present Petitioner vide the impugned judgment 
dated 14.10.2015. 
10.  
Civil Petition for Leave to Appeal No.3674 of 
2015 is directed against the impugned Order dated 
09.12.2015 of the learned Peshawar High Court, 
Peshawar, whereby a Constitutional Petition i.e. Writ 
Petition No.3219-P of 2015, filed by the present 
Petitioner, was dismissed.  
11.  
The brief facts necessary for a just decision of 
the instant case are that the Petitioner filed a 
Constitutional Petition i.e. Writ Petition No.3219-P of 
CPs.842/2016, etc. 
9 
2015, stating therein that he is an ex-army personnel 
whose son namely, Atteeq-ur-Rehman was missing for 
the last eight months and he tried to locate his son but 
in vain. The Petitioner in this regard has also lodged FIR 
No.369 dated 06.12.2014, under Section 365, 324/34 
PPC at Police Station, Nowshera Cantt. However, on 
14.08.2015, he came to know through a news item 
published in different newspapers that his said son 
along with others has been tried by a FGCM on the 
charge of attacking the Army Public School, Peshawar 
on 16.12.2014 and had been sentenced to death.  
12.  
With the above contentions, the Petitioner filed 
Constitutional Petition i.e. Writ Petition No.3219-P of 
2015 
before 
the 
learned 
Peshawar 
High 
Court, 
challenging the conviction and sentence awarded to the 
Petitioner’s son Atteeq-ur-Rehman and also seeking an 
order for the production of the said Convict. The said 
Writ Petition was dismissed by the learned Peshawar 
High Court vide Order dated 09.12.2015. Hence, this 
Civil Petition for Leave to Appeal.  
13.  
Civil Petition for Leave to Appeal No.3777 of 
2015 is directed against the Order dated 09.12.2015 of 
the learned Peshawar High Court, Peshawar, whereby a 
CPs.842/2016, etc. 
10 
Constitutional 
Petition 
i.e. 
Writ 
Petition 
bearing 
No.3076-P of 2015, filed by the present Petitioner, was 
dismissed. 
14.  
The brief facts as narrated in the instant 
Petition are that the Petitioner is the mother of one Taj 
Muhammad alias Rizwan, who was allegedly picked-up 
from his house by some personnel of the Law 
Enforcement Agencies accompanied by the local police of 
Pishtakhara Police Station on 07.02.2015. The male 
members of the family searched for Taj Muhammad 
alias Rizwan but could not discover his whereabouts. It 
was contended that the said Taj Muhammad alias 
Rizwan neither had a criminal history nor he or his 
family was associated with any banned or terrorist 
organization, except that in the year 2007, Taj 
Muhammad, in the company of one Nazeer of the same 
tribe, visited South Waziristan, where he stayed in Wana 
for 40 days.  
15.  
Eventually, it was contended that, through a 
news item dated 14.08.2015, it was discovered that the 
son of the Petitioner (Taj Muhammad alias Rizwan) had 
been tried and convicted by a FGCM and sentenced to 
death in the Army Public School’s case.  
CPs.842/2016, etc. 
11 
16.  
The Petitioner challenged the such conviction 
by invoking the Constitutional jurisdiction of the learned 
Peshawar High Court, Peshawar through Writ Petition 
No.3076-P of 2015, which was dismissed vide the Order 
impugned dated 09.12.2015.   
17.  
Civil Petition for Leave to Appeal No.6 of 2016 
is 
directed 
against 
the 
impugned 
Order 
dated 
09.12.2015 of the learned Peshawar High Court, 
Peshawar, whereby a Constitutional Petition i.e. Writ 
Petition bearing No.4019-P of 2015, filed by the present 
Petitioner, was dismissed. 
18.  
The brief facts as narrated in this Petition are 
that the Petitioner is the father of one Qari Zubair 
Mohammad, who was allegedly picked up from his 
house by Army personnel and Intelligence Agencies, 
accompanied by the local police on 16.08.2009. In 
respect of his disappearance, the Petitioner filed an 
application before the Commission of Inquiry of 
Enforced Disappearance (COIOED), to locate and recover 
his son. The COIOED inquired into the matter and gave 
direction to lodge an FIR against the responsible police 
officials. After lodging the FIR, the police officials were 
brought to trial by the Senior Civil Judge/Judicial 
CPs.842/2016, etc. 
12 
Magistrate, Nowshera, and a formal charge was framed. 
However, subsequently the proceedings were stopped 
under Section 249 Cr.P.C. on 07.07.2012.  
19.  
Eventually, 
through 
the 
Internet 
on 
10.11.2015, 
it 
was 
disclosed 
that 
Qari 
Zubair 
Mohammad had been tried and convicted by a FGCM 
and sentenced to death.  
20.  
The Petitioner challenged such conviction by 
invoking the Constitutional jurisdiction of the learned 
Peshawar High Court, Peshawar, through Writ Petition 
No.4019-P of 2015, which has been dismissed vide the 
impugned Order dated 09.12.2015.   
21.  
Civil Petition for Leave to Appeal No.32 of 2016 
is 
directed 
against 
the 
impugned 
Order 
dated 
09.12.2015 of the learned Peshawar High Court, 
Peshawar, whereby a Constitutional Petition i.e. Writ 
Petition (HCP) No.3878-P of 2015, filed by the present 
Petitioner, was dismissed. 
22.  
The brief facts as narrated in the instant 
Petition are that the nephew of the Petitioner, namely, 
Jameel ur Rehman was taken into custody by the 
Intelligence Agencies in the year 2014. Eventually, 
through a news item published on 22.09.2015 in Daily 
CPs.842/2016, etc. 
13 
Aaj, it was disclosed that Jameel ur Rehman had been 
tried and convicted by a FGCM and sentenced to death.  
23.  
The Petitioner challenged such conviction by 
invoking the Constitutional jurisdiction of the learned 
Peshawar High Court, Peshawar through Writ Petition 
(HCP) No.3878-P of 2015, which has been dismissed 
vide the Order impugned dated 09.12.2015.   
24.   
Civil Petition for Leave to Appeal No.211 of 
2016 is directed against the impugned Order dated 
23.12.2015 of the learned Peshawar High Court, 
Peshawar, whereby a Constitutional Petition i.e. Writ 
Petition bearing No.4433-P of 2015, filed by the present 
Petitioner, was dismissed. 
25.  
The brief facts as narrated in the instant 
Petition are that the brother of the Petitioner, namely, 
Aslam Khan, was taken into custody by the security 
forces about 4-5 years ago, while he was returning from 
Afghanistan after visiting his relatives, and was shifted 
to an unknown destination. The whereabouts of Aslam 
Khan remained unknown.  
26.  
In due course, it was contended, that through 
a news item published in the Daily Aaj, Peshawar, dated 
22.09.2015, it was revealed that the Petitioner’s brother 
CPs.842/2016, etc. 
14 
Aslam Khan had been tried and convicted by a FGCM 
and sentenced to death.  
27.  
The Petitioner challenged such conviction by 
invoking the constitutional jurisdiction of the learned 
Peshawar High Court, Peshawar through Writ Petition 
No.4433-P of 2015, which was dismissed in limine vide 
the Order impugned dated 23.12.2015, upholding the 
conviction and sentence awarded to the said Aslam 
Khan.   
28.  
Civil Petition for Leave to Appeal No.278 of 
2016 is directed against the impugned Order dated 
27.01.2016 
of 
the 
learned 
Lahore 
High 
Court, 
Rawalpindi Bench, whereby a Constitutional Petition i.e. 
Writ Petition bearing No.197 of 2016, filed by the 
present Petitioner, was dismissed. 
29.  
The brief facts as narrated in this Petition are 
that the son of the Petitioner, namely, Muhammad 
Ghauri went missing on 07.01.2010. In respect of his 
disappearance, the Petitioner filed an application on 
21.01.2010 in the concerned Police Station and FIR 
No.107 dated 16.02.2011 was registered at the Police 
Station Shalimar, Islamabad. In order to procure the 
recovery of his son, the Petitioner invoked the 
CPs.842/2016, etc. 
15 
Constitutional jurisdiction of the learned Lahore High 
Court, Rawalpindi Bench as well as this Court. The 
Petitioner also approached the COIOED but to no avail. 
Eventually, it was disclosed that the Petitioner’s son was 
confined in the Internment Center, Lakki Marwat.  
30.  
In due course, it was contended, that through 
a news item dated 01.01.2016, it was revealed that the 
Petitioner’s son Muhammad Ghauri had been tried by a 
FGCM and sentenced to death.  
31.  
The Petitioner challenged such conviction by 
invoking the Constitutional jurisdiction of the learned 
Lahore High Court, Rawalpindi Bench through Writ 
Petition No.197 of 2016, which has been dismissed vide 
the Order impugned dated 27.01.2016.   
32.  
Civil Petition for Leave to Appeal No.417 of 
2016 is directed against the impugned Order dated 
19.01.2016 of the learned Peshawar High Court, 
Peshawar, whereby a Constitutional Petition i.e. Writ 
Petition bearing No.133-P of 2016, filed by the present 
Petitioner, was dismissed. 
33.  
The brief facts as narrated in the instant 
Petition are that the younger brother of the Petitioner, 
namely, Tahir, was arrested on 23.02.2014 from Lahore. 
CPs.842/2016, etc. 
16 
On 03.09.2015, the Petitioner came to know through a 
news item published in the daily Mashriq, Peshawar 
that his brother has been convicted by a FGCM at 
Peshawar and awarded a death sentence. Earlier the 
Petitioner’s 
father 
invoked 
the 
Constitutional 
jurisdiction of the learned Islamabad High Court by 
filing a Constitutional Petition i.e. Writ Petition bearing 
No.2788 of 2015, seeking information regarding the 
whereabouts of Tahir and to meet him, which was 
disposed of on 18.09.2015. In order to meet his said 
brother who it was discovered was confined in District 
Jail, Peshawar, the Petitioner invoked the jurisdiction of 
the learned Peshawar High Court, Peshawar through 
Writ Petition bearing No.3468-P of 2015, whereupon a 
direction was issued to the Respondents to act in 
accordance with the law and the Petitioner was 
permitted to meet his brother.  
34.  
In 
the 
above 
backdrop, 
the 
Petitioner 
challenged the conviction of his brother by invoking the 
Constitutional Jurisdiction of the learned Peshawar 
High Court, Peshawar, through a Constitutional Petition 
i.e. Writ Petition No.133-P of 2016, which was dismissed 
vide the Order impugned dated 19.01.2016. 
CPs.842/2016, etc. 
17 
35.  
Civil Petition for Leave to Appeal No.1263 of 
2016 is directed against the impugned judgment dated 
12.04.2016 of the learned Peshawar High Court, 
Peshawar, whereby a Constitutional Petition i.e. Writ 
Petition bearing No.1048-P of 2016, filed by the present 
Petitioner, was dismissed. 
36.  
The brief facts as narrated in the Petition are 
that the Petitioner voluntarily surrendered himself 
before the Army Authorities on 27.12.2009 and was 
confined at Internment Center, Gulibagh. Neither any 
FIR nor any criminal case was registered against him. 
On 16.03.2016, the Petitioner’s family came to know 
through various newspapers that the Petitioner along 
with some others has been awarded death sentence by 
the FGCM and the Chief of Army Staff has given assent 
to the death warrants of all the said Convicts, including 
the Petitioner.  
37.  
In 
the 
above 
backdrop, 
the 
Petitioner 
challenged his conviction and sentence by invoking the 
Constitutional jurisdiction of the learned Peshawar High 
Court, Peshawar through Writ Petition No.1048-P of 
2016, which has been dismissed vide the impugned 
judgment dated 12.04.2016. 
CPs.842/2016, etc. 
18 
38.  
Civil Petition for Leave to Appeal No.1306 of 
2016 is directed against the impugned judgment dated 
12.04.2016 of the learned Peshawar High Court, 
Peshawar, whereby a Constitutional Petition i.e. Writ 
Petition No.1184-P of 2014, filed by the present 
Petitioner, was dismissed.  
39.  
The brief facts of the case, as narrated in this 
Petition are that on 20.11.2014, the Petitioner’s son 
namely, Fateh Khan was allegedly arrested by the Law 
Enforcement Agencies from Sarband, Peshawar. The 
whereabouts of her son, despite hectic efforts, could not 
be discovered. The Petitioner in this regard approached 
the Police Station Sarband, Peshawar, for registration of 
the FIR in November, 2014 but could not succeed.  
40.  
Being aggrieved of the conduct of the police 
and the Political Agent, she sent an application to the 
learned Chief Justice, Peshawar High Court, who took 
up the action and repeatedly directed the concerned 
quarters to record the statement of the Complainant and 
submit a report. It is alleged that neither the police 
recorded her statement nor submitted any comments, in 
this behalf.  
CPs.842/2016, etc. 
19 
41.  
 On 25.03.2016, she received information 
through the Political Agent, Barah that her son would be 
hanged on 30.03.2016.  
42.  
In view of the above, the Petitioner invoked the 
Constitutional jurisdiction of the learned Peshawar High 
Court by filing the above said Constitutional Petition, 
which was dismissed vide impugned judgment dated 
12.04.2016. Hence, this Civil Petition for Leave to 
Appeal.  
43.  
Civil Petition for Leave to Appeal No.1335 of 
2016 is directed against the impugned judgment dated 
12.04.2016 of the learned Peshawar High Court, 
Peshawar, whereby Writ Petition No.1190-P of 2016, 
filed by the present Petitioner, was dismissed.  
44.  
The brief facts necessary for disposal of this 
Petition are that the Petitioner, who is the brother of 
Convict Taj Gul stated in his Petition that in the year 
2011, his brother was handed over by the elders of the 
locality to the Law Enforcement Agencies as directed 
and thereafter, he was shifted to some unknown place 
and later detained/confined at Internment Center, 
Paitham, Swat, where he was allowed visits by his 
relatives and the last such visit took place in the year 
CPs.842/2016, etc. 
20 
2015. Subsequently, through the print media, the 
Petitioner came to know about the confirmation of death 
sentence awarded to his brother by the FGCM.  
45.  
The Petitioner invoked the Constitutional 
jurisdiction of the learned Peshawar High Court, 
Peshawar, by challenging the said conviction and 
sentence awarded to the Convict through the Writ 
Petition 
bearing No.1190-P of 
2016, 
which 
was 
dismissed through the judgment impugned dated 
12.04.2016. Hence, this Civil Petition for Leave to 
Appeal.  
46.  
Civil Petition for Leave to Appeal No.1353 of 
2016 is directed against the impugned Order dated 
19.01.2016 
of 
the 
learned 
Lahore 
High 
Court, 
Rawalpindi Bench, whereby a Constitutional Petition i.e. 
Writ Petition No.117 of 2016, filed by the mother of the 
Petitioner was, dismissed in limine. 
47.  
The brief facts of this case as narrated in this 
Petition are that allegedly on 14.07.2014 the son of the 
Petitioner namely, Aksan Mehboob disappeared from 
Lahore. The Petitioner tried her best to locate her son 
but in vain. Subsequently, through the print media, it 
was revealed that on 18.07.2014 the Petitioner’s son 
CPs.842/2016, etc. 
21 
had been killed alongwith another terrorist in an 
encounter near Raiwind.  She tried unsuccessfully to get 
the dead body from the Law Enforcement Agencies. On 
22.07.2014, she came to know that her son was alive 
and in the custody of the Military Intelligence. She tried 
to meet her son but failed. On 01.01.2016, it was 
discovered through a press release issued by the Inter-
Services Public Relations (ISPR) that her son had been 
convicted and sentenced to death by a FGCM and such 
sentence had been confirmed by the Chief of Army Staff.  
48.  
The Petitioner invoked the Constitutional 
jurisdiction 
of 
the 
learned 
Lahore 
High 
Court, 
Rawalpindi Bench, challenging her son's conviction and 
sentence by filing a Constitutional Petition i.e. Writ 
Petition No.117 of 2016, which was dismissed by the 
learned High Court vide the Order impugned dated 
19.01.2016. Hence, this Civil Petition for Leave to 
Appeal.  
49.  
Civil Petition for Leave to Appeal No.1503 of 
2016 is directed against the impugned judgment dated 
12.04.2016 of the learned Peshawar High Court, 
Peshawar, whereby a Constitutional Petition i.e. Writ 
CPs.842/2016, etc. 
22 
Petition bearing No.1271-P of 2016, filed by the present 
Petitioner, was dismissed. 
50.  
The brief facts as narrated in the instant 
Petition are that the Petitioner is the father of the 
Convict, namely, Nasir Khan, who was allegedly taken 
into custody by the security forces on 03.07.2014 from 
Harno Azizabad and shifted to an unknown destination. 
Thereafter, a daily diary dated 08.07.2014 was recorded 
by Respondent No.1 i.e. SHO, Police Station Bugnotar, 
District Abbottabad in respect of the disappearance of 
Nasir Khan. Subsequently, the Petitioner invoked the 
Constitutional jurisdiction of the learned Peshawar High 
Court, Abbottabad Bench by filing Writ Petition bearing 
No.268 of 2016, which was dismissed, being not 
pressed, pursuant to the progress report, submitted by 
Respondent No.1. It was eventually discovered that the 
Petitioner’s son has been convicted under the Pakistan 
Army Act, 1952. 
51.  
The Petitioner challenged such conviction by 
invoking the Constitutional jurisdiction of the learned 
Peshawar High Court, Peshawar through Writ Petition 
No.1271-P of 2016, which was dismissed vide the 
judgment impugned dated 12.04.2016.   
CPs.842/2016, etc. 
23 
52.  
Civil Petition for Leave to Appeal No.1541 of 
2016 is directed against the impugned Order dated 
12.05.2016 
of 
the 
learned 
Lahore 
High 
Court, 
Bahawalpur Bench, whereby a Constitutional Petition 
i.e. Writ Petition No.3315 of 2016, filed by the present 
Petitioner, was dismissed, being not maintainable. 
53.  
The brief facts, as narrated in the instant 
Petition are that the Petitioner’s son namely Muhammad 
Arbi was falsely involved in a criminal case FIR No.39 of 
2014 dated 07.02.2014, under Section 365-B PPC 
registered with Police Station Nowshehra Jadeed, 
District Bahawalpur but was acquitted in the said case 
and was never involved in any other case.  However, 
through print media, the Petitioner discovered that his 
son has been convicted and sentenced to death by a 
"Military Court" on the basis of alleged confession.  
54.  
It appears that the Petitioner had earlier 
invoked the jurisdiction of this Court by filing a 
Constitutional Petition, which was returned by the Office 
vide Order dated 22.02.2016, being not maintainable 
and with a direction to seek his remedy before an 
appropriate forum.  
CPs.842/2016, etc. 
24 
55.  
The Petitioner filed a Constitutional Petition 
i.e. Writ Petition No.3315 of 2016 before the learned 
Lahore High Court, Bahawalpur Bench, challenging the 
said conviction and sentence of his son, which was 
dismissed vide the Order impugned dated 12.05.2016. 
Hence, this Civil Petition for Leave to Appeal.  
56.  
In the aforementioned Civil Petitions for Leave 
to Appeal, the convictions and sentences awarded by the 
FGCMs to various Convicts have been called into 
question. No doubt, the learned counsel for the 
Petitioners advanced some arguments, which were case 
specific, yet the main thrust of their contentions was on 
a legal plane and common in all these Civil Petitions for 
Leave to Appeal 
57.   
In this behalf, it was contended by the learned 
counsels for the Petitioners that the Convicts in the 
instant cases have been subjected to a secret trial 
without access to legal assistance, having been deprived 
of the right to be represented by a Legal Practitioner of 
their own choice in violation of rights so guaranteed by 
Articles 10 and 10A of the Constitution of the Islamic 
Republic of Pakistan, 1973. Thus, the procedure 
adopted and followed denuded the proceedings of the 
CPs.842/2016, etc. 
25 
requirements of a “fair trial” and “due process”. It was 
further contended that even otherwise, the Fundamental 
Rights of the Convicts guaranteed under Articles 10 and 
10A of the Constitution have thus been violated and the 
trials were also not in consonance with Article 4 of the 
Constitution. It was added that the Rules applicable i.e. 
the Pakistan Army Act Rules, 1954, were violated to the 
prejudice of the Convicts, as a consequence whereof, the 
trials and the convictions were illegal and invalid. 
Reference, in this behalf, was made to Rules 23 and 24 
as well as Rules 81 to 87 of the Pakistan Army Act 
Rules, 1954. It was further contended that the Convicts 
were deprived of their rights to produce evidence in their 
defence or to cross-examine the prosecution witnesses. 
It was further added that sufficient time and opportunity 
to prepare the defence was not provided in terms of Rule 
23 of the Pakistan Army Act Rules, 1954. The learned 
counsels for the Petitioners next added that the trials 
were conducted more than three years after the alleged 
occurrence in violation of the bar contained in Section 
91 of the Pakistan Army Act, 1952, hence, the said trials 
were without jurisdiction.  
CPs.842/2016, etc. 
26 
58.  
It was also contended by the learned counsels 
for the Petitioners that in respect of the alleged 
occurrences for which the Convicts were tried and 
sentenced, no FIR was ever registered. It was added that 
the Convicts were kept in illegal detention for years on 
end and the proceedings of the FGCMs, were a mala fide 
attempt to cover up such illegalities. The convictions are 
based primarily on the alleged confessions before the 
Judicial Magistrates, which were not recorded in 
accordance with the law and the Convicts were handed 
back to the Law Enforcement Agencies after recording 
the alleged confessions. Furthermore, the Convicts were 
kept in the Internment Centers under the Actions (in aid 
of Civil Power) Regulation, 2011 and the very vires 
thereof are sub judice before this Court for being, inter 
alia, in violation of Articles 10 and 10A of the 
Constitution.  
59.  
It was added that no pre-trial proceedings 
were conducted, which is a requirement under the 
Pakistan Army Act, 1952, nor such summary of 
evidence was provided to the accused nor has been 
made available to their counsels or has been presented 
CPs.842/2016, etc. 
27 
to this Court establishing beyond any doubt that the 
Pakistan Army Act Rules, 1954, have been violated.  
60.  
The learned counsels further contended that 
the privilege has been claimed with regard to the record 
of the trials, which is not permissible under the law with 
respect 
to 
criminal 
proceedings 
in 
view 
of 
the 
judgments, reported as Mohtarma Benazir Bhutto v. The 
President of Pakistan through the Secretary to the 
President (1992 SCMR 1357 & PLD 1992 SC 492) and 
Muhammad Uris v. Government of Sindh through 
Secretary, Revenue Department, Board of Revenue, 
Hyderabad and 2 others (1998 CLC 1359). 
61.  
An issue was also raised with regard to the 
selection of the cases for trial by the FGCMs in respect 
of the matters at hand. In this behalf, it is contended, no 
objective criteria exists nor was employed and nothing is 
on the record to illustrate the basis for the selection of 
these cases for trial by the FGCMs.  
62.   
It was further contended that the Convict 
Haider Ali (in Civil Petition for Leave to Appeal No.3331 
of 2015) was a juvenile at the time of the alleged 
occurrence, hence, could not be tried by the FGCM 
especially as the factum of his age stood established 
CPs.842/2016, etc. 
28 
through documentary evidence placed before the learned 
High Court, which has been ignored.  
63.  
It is the case of the Petitioners that the 
aforesaid failures in the mode and method of the trial 
renders the same illegal and unconstitutional and the 
convictions and sentences awarded without jurisdiction, 
coram non judice and suffering from mala fides, 
therefore, the learned High Court as well as this Court 
were not only vested with the jurisdiction to entertain, 
examine and adjudicate upon the contentions raised on 
behalf of the Petitioners but also to set aside the 
convictions and sentences awarded by the FGCMs in the 
instant cases notwithstanding the bar contained in 
Article 199(3) of the Constitution especially in view of 
the interpretation thereof as set forth in the various 
judgments of this Court. The learned counsels also 
complained that they were handicapped by their limited 
access to the record of the trials.  
64.  
The 
learned 
DAG 
for 
Pakistan 
has 
controverted the contentions raised on behalf of the 
Petitioners by contending that the Convicts and the 
offences for which they were tried in each and everyone 
of the cases at hand were subject to the Pakistan Army 
CPs.842/2016, etc. 
29 
Act, hence, the convictions could not be challenged 
before the learned High Court in exercise of its 
jurisdiction 
conferred 
under 
Article 
199 
of 
the 
Constitution in view of Sub Article (3) thereof. It is added 
that it is settled law that the jurisdiction of the High 
Court and this Court is limited, in this behalf, to the 
cases of coram non judice, without jurisdiction and mala 
fides and the contentions raised on behalf of the 
Petitioners do not fall in any of three categories. It was 
further contended that no objection was raised or 
established on record that the FGCMs in question were 
not legally constituted in accordance with the law so as 
to render the convictions and sentences handed down 
coram non judice. The learned DAG further added that 
no mala fide had been alleged against the Members of 
the FGCMs nor such mala fides have been pleaded with 
the requisite particularity or ex facie established on the 
record. It was added that it has been conclusively held 
by a Larger Bench of this Court in the case, reported as 
District Bar Association, Rawalpindi and others v. 
Federation of Pakistan and others (PLD 2015 SC 401) 
that the Convicts in view of the offences for which they 
were accused, were subject to the Pakistan Army Act 
CPs.842/2016, etc. 
30 
and the FGCMs constituted under the said Act were 
vested with the jurisdiction to try the Convicts and 
sentence them, hence, the convictions and sentences 
awarded are not without jurisdiction.  
65.   
The learned DAG for Pakistan also contended 
that each and every Convict was given full opportunity 
to defend himself. The option to engage a Legal 
Practitioner of their own choice was afforded and upon 
failure to take advantage of such option, an Officer was 
deputed to defend them in terms of the Pakistan Army 
Act Rules, 1954. The procedure, as provided in the 
Pakistan Army Act and the Rules framed thereunder 
was meticulously followed in letter and spirit and no 
specific deviation therefrom have been pointed out by 
the Petitioners. The learned DAG stated that the 
convictions are the result of a "fair trial", which were 
held in accordance with the law i.e. the Pakistan Army 
Act and the Rules framed thereunder without in any 
manner transgressing against any of the provision of the 
Constitution or violating any right guaranteed thereby. It 
is added that the aforesaid Convicts not only admitted 
their guilt but in fact boasted of their “exploits” of 
waging war against Pakistan and killing innocent 
CPs.842/2016, etc. 
31 
civilians and the Members of the Law Enforcement 
Agencies, yet as required by the Pakistan Army Act, 
their pleas of guilty were altered to not guilty, and 
evidence produced by the prosecution to establish the 
charges against them. It was further contended that full 
access was given to the learned counsels for the 
Petitioners under the Orders of this Court to examine 
the record of the trials in question, subject only to the 
constraints necessitated by the concern for safety and 
security of the Members of the FGCMs and the 
witnesses in accordance with the provisions of Section 
2-C of the Pakistan Army Act. The learned DAG further 
contended that reference to Section 91 of Pakistan Army 
Act is misconceived, as the provisions thereof were 
inapplicable to the offences for which the Convicts in the 
instant cases have been tried and sentenced.  
66.   
With regard to Convict, Haider Ali (in Civil 
Petition for Leave to Appeal No.3331 of 2015), it was 
contended by the learned DAG that he was not a 
juvenile at the time of the occurrence. During the 
proceedings before the learned High Court, the relevant 
record was examined by the learned High Court, which 
recorded its satisfaction with regard to the age of the 
CPs.842/2016, etc. 
32 
Convict and he being a major at the time of the 
occurrence. Even otherwise, the Pakistan Army Act has 
an overriding effect over any other law, in this behalf, in 
view of Section 4 of the Pakistan Army (Amendment), 
Act, 2015. 
67.   
The learned Deputy Attorney General for 
Pakistan 
added 
that 
pre-trial 
proceedings 
were 
conducted and the summary of evidence recorded, as is 
evident from the record of the trial by the FGCMs. It was 
added that the Pakistan Army Act and the Rules framed 
thereunder were followed in letter and spirit, however, 
any deviation therefrom does not vitiate the trial in view 
of Rule 132. Furthermore, neither the learned High 
Court nor this Court in exercise of their respective 
constitutional jurisdiction can examine or set aside the 
trial only on the ground that the procedure was not 
followed. In his behalf, reliance was placed on the 
judgments, reported as Brig. (Retd) F.B. Ali and another 
v. The State  (PLD 1975 SC 506), Muhammad Din and 
others v. The State (PLD 1977 SC 52), Mrs. Shahida 
Zahir Abbasi and 4 others v. President of Pakistan and 
others (PLD 1996 SC 632) and District Bar Association, 
Rawalpindi and others v. Federation of Pakistan and 
CPs.842/2016, etc. 
33 
others (PLD 2015 SC 401). With regard to Articles 10 
and 10A of the Constitution, 1973, it was contended 
that since the Pakistan Army Act, 1952, as amended by 
the Pakistan Army (Amendment Act), 2015, has been 
incorporated in the First Schedule of Article 8, therefore, 
the provisions thereof and proceedings conducted 
thereunder are immune from challenge on the ground of 
any alleged violation of the Fundamental Rights, 
including Articles 10 and 10A of the Constitution and 
the benefit thereof is not available to the Convicts in the 
instant cases.   
68.  
Heard. Available record perused. 
69.  
The instant Civil Petitions for Leave to Appeal 
are directed against the various Judgments/Orders of 
the different learned High Courts, whereby Writ 
Petitions calling into question the convictions and 
sentences of individuals awarded by the FGCMs were 
dismissed. 
The Convicts in 
respect 
whereof 
the 
Constitutional Petitions had been filed before the 
learned High Courts were all civilians, who were tried by 
FGCM purportedly in view of the Constitution (Twenty-
first Amendment) Act (Act I of 2015) read with the 
Pakistan Army (Amendment) Act (Act II of 2015). The 
CPs.842/2016, etc. 
34 
Constitutionality of the Twenty-first Amendment as well 
as the Pakistan Army (Amendment) Act of 2015, were 
called into question before this Court and a Larger 
Bench by majority of 11 to 6 held the aforesaid Twenty-
first Constitutional Amendment and the Pakistan Army 
(Amendment) Act, 2015, not to be ultra vires the 
Constitution vide judgment, reported as District Bar 
Association, Rawalpindi and others (supra).  
70.  
In 
the 
proceedings 
culminating 
in 
the 
impugned Judgments/Orders, the jurisdiction of the 
learned 
High 
Courts 
under 
Article 
199 
of 
the 
Constitution, had been invoked. The said Article 
contains a non-obstantive provision i.e. sub-article (3) 
thereof, which reads as under: 
 
"(3) An order shall not be made under 
clause (1) on application made by or in 
relation to a person who is a member of 
the Armed Forces of Pakistan, or who is 
for the time being subject to any law 
relating to any of those Forces, in 
respect of his terms and conditions of 
service, in respect of any matter arising 
out of his service, or in respect of any 
action taken in relation to him as a 
member of the Armed Forces of Pakistan 
or as a person subject to such law." 
 
 
 
      (emphasis supplied) 
  
71.  
A bare perusal of the aforesaid provision would 
suggest that prima facie a High Court in exercise of its 
jurisdiction under Article 199(1) of the Constitution 
CPs.842/2016, etc. 
35 
cannot pass any order in respect of any person who even 
for the time being is subject to any law pertaining to the 
Armed Forces with regard to any action taken under 
such law. The Pakistan Army Act, 1952, is one of the 
laws applicable to the Armed Forces of Pakistan. The 
jurisdiction of the learned High Courts with regard to 
the exercise of the powers of Judicial Review with 
respect to trial by the FGCM under the Pakistan Army 
Act, 
1952, 
as 
amended 
by 
the 
Pakistan Army 
(Amendment) Act, 2015, and the convictions and 
sentences handed down thereunder were also examined 
in the case of District Bar Association, Rawalpindi and 
others (supra). This Court considered, inter alia, the 
ratio of the previous judgments of this Court, reported 
as The State v. Zia-ur-Rahman and others (PLD 1973 
SC 49), Brig. (Retd) F.B. Ali and another v. The State 
(PLD 1975 SC 506), Federation of Pakistan and another 
v.  Malik Ghulam Mustafa Khar (PLD 1989 SC 26), Mrs. 
Shahida Zahir Abbas and 4 others v. President of 
Pakistan  and others (PLD 1996 SC 632), Ex.Lt. Col. 
Anwar Aziz (PA-7122) v. Federation of Pakistan through 
Secretary, Ministry of Defence, Rawalpindi and 2 others 
(PLD 2001 SC 549), Mst. Tahira Alams and another v. 
CPs.842/2016, etc. 
36 
Islamic Republic of Pakistan through Secretary, Ministry 
of Interior, Islamabad and another (PLD 2002 SC 830), 
Federation of Pakistan and others v. Raja Muhammad 
Ishaque Qamar and another (PLD 2007 SC 498), 
Ghulam Abbas Niazi v. Federation of Pakistan and 
others (PLD 2009 SC 866),  Chief Justice of Pakistan 
Iftikhar Muhammad Chaudhry v. President of Pakistan 
through Secretary and others (PLD 2010 SC 61), 
Secretary, Ministry of Religious Affairs and Minorities 
and 2 others v. Syed Abdul Majid (1993 SCMR 1171), 
Begum Syed Azra Masood v. Begum Noshaba Moeen and 
others (2007 SCMR 914), Syed Rashid Ali and others v. 
Pakistan Telecommunication Company Ltd and others 
(2008 SCMR 314), Federation of Pakistan through 
Secretary Defence and others v. Abdul Basit (2012 
SCMR 1229), Rana Muhammad Naveed and another v.  
Federation of Pakistan through Secretary M/o Defence 
(2013 SCMR 596), Karamat Ali  v. State (PLJ 1976 SC 
341) and Ex.PJO-162510 Risaldar Ghulam Abbas v. 
Federation of Pakistan through Secretary, Ministry of 
Defence, Government of Pakistan, Rawalpindi and 
others (PLJ 2013 SC 876).  
CPs.842/2016, etc. 
37 
The settled law as gleaned from the aforesaid 
judgments was reiterated in the following terms: 
"171.    In view of the above, there can be 
no manner of doubt that it is a settled 
law that any order passed or sentence 
awarded by a Court Martial or other 
Forums under the Pakistan Army Act, 
1952, included as amended by the 
Pakistan Army (Amendment) Act, 2015, 
is subject to the Judicial Review both by 
the High Courts and this Court, inter 
alia, on the ground of coram-non-judice, 
without jurisdiction or suffering from 
mala fides including malice in law. This 
would also hold true for any decision 
selecting or transferring a case for trial 
before a Court Martial. …" 
(emphasis supplied) 
 
72.  
Before the contentions of the learned counsels 
for the Petitioners in the context of the available record 
with regard to the individual's case can be examined, it 
would perhaps be appropriate to ascertain the extent 
and contours of the jurisdiction of Judicial Review 
available with the learned High Courts under Article 199 
of the Constitution in such like matters.  
73.  
The grounds on the basis whereof a challenge 
can be thrown to the proceedings taken, convictions and 
sentences awarded by the FGCM have been specified 
hereinabove so as to include the grounds of coram non 
judice, without jurisdiction or suffering from mala fides, 
including malice in law only. 
CPs.842/2016, etc. 
38 
  
An overview of the judicial pronouncements on the 
point reveals that the expression coram non judice is 
usually employed in conjunction with the expression 
"without jurisdiction" and occasionally as synonymous 
therewith. However, in Black's Law Dictionary, Ninth 
Edition, the term coram non judice has been defined as 
follows: 
"Coram non judice (kor-em non joo-di-
see). [Latin "not before a judge"] 1. 
Outside the presence of a judge. 2. 
Before a judge or court that is not the 
proper one or that cannot take legal 
cognizance of the matter." 
 
  
Hamoodur Rahman, C.J., as he then was, in the 
judgment of this Court, reported as Chittaranjan Cotton 
Nulls Ltd v. Staff Union (1971 PLC 499) very succinctly 
observed as follows: 
  
"Where 
the 
Court 
is 
not 
properly 
constituted at all the proceedings must 
be held to be coram non judice and, 
therefore, non-existent in the eye of law. 
There can also be no doubt that in such 
circumstances. …" 
 
74.  
Thus, it appears that the coram non judice in 
fact is perhaps a fatal flaw germane to the very 
constitution 
of 
the 
judicial 
forum 
rendering 
its 
proceedings non-est in the eye of law. Though a forum 
may be vested with the jurisdiction yet its actions may 
be invalid, if such forum has been set up in clear and 
CPs.842/2016, etc. 
39 
absolute violation of the law applicable in this behalf. 
The purpose of undertaking this exercise is not to 
circumscribe or limit the jurisdiction of the learned High 
Court but to amplify the same. 
75.  
 The other expression which needs to be 
dilated upon, in this behalf, is "mala fides including 
malice in law". The expression "mala fides" has been 
explained in great detail by this Court in the judgment, 
reported as The Federation of Pakistan through the 
Secretary, 
Establishment 
Division, 
Government 
of 
Pakistan, Rawalpindi v. Saeed Ahmad Khan and others 
(PLD 1974 SC 151), in the following terms: 
  
"Mala fides"  literally means "in bad 
faith". Action taken in bad faith is 
usually action taken maliciously in fact, 
that is to say, in which the person 
taking the action does so out of personal 
motives either to hurt the person against 
whom the action is taken or to benefit 
oneself. Action taken in colourable 
exercise of powers, that is to say, for 
collateral purposes not authorised by 
the law under which the action is taken 
or action taken in fraud of the law are 
also mala fide. It is necessary, therefore, 
for a person alleging that an action has 
been taken mala fide to show that the 
person responsible for taking the action 
has been motivated by any one of the 
considerations mentioned above. A mere 
allegation that an action has been taken 
wrongly is not sufficient to establish a 
case of mala fides, nor can a case 
of mala fides be established on the basis 
of universal malice against a particular 
class or section of the people. …" 
CPs.842/2016, etc. 
40 
 
In the above-said judgment, it was also observed as 
follows: 
"In order to establish a case of mala 
fides, some such specific allegation is 
necessary and it must be supported by 
some prima facie proof to justify the 
Court to call upon the other side to 
produce evidence in its possession." 
 
 
A similar view was also taken by this Court in the 
cases, reported as Abdul Baqi Baluch v. Government of 
Pakistan through the Cabinet Secretary, Rawalpindi 
(PLD 1968 SC 313). 
 
In the case, reported as Abdul Rauf and others v. 
Abdul Hamid Khan and others (PLD 1965 SC 671), this 
Court observed as follows: 
 
"… A mala fide act is by its nature an 
act without jurisdiction. No Legislature 
when it grants power to take action or 
pass an order contemplates a mala fide 
exercise of power. A mala fide order is a 
fraud 
on 
the 
statute. 
It 
may 
be 
explained that a mala fide order means 
one which is passed not for the purpose 
contemplated by the enactment granted 
the power to pass the order, but for 
some 
other 
collateral 
or 
ulterior 
purposes." 
 
 
In the case, reported as Zafar-ul-Ahsan v. The 
Republic of Pakistan (through Cabinet Secretary, 
Government of Pakistan) (PLD 1960 SC 113) this Court 
held as follows: 
CPs.842/2016, etc. 
41 
 
"… If an appellate authority is provided 
by 
the 
statute 
the 
omissions 
or 
irregularity alleged will be a matter for 
that authority, and not, as rightly 
observed by the High Court, for a Court 
of law. Of course where the proceedings 
are taken mala fide and the statute is 
used merely as a cloak to cover an act 
which in fact is not taken though it 
purports to have been taken under the 
statute, the order will not, in accordance 
with a long line of decisions in England 
and in this sub-continent, be treated as 
an order under the statute." 
  
 
This Court in the case, reported as Government of 
West Pakistan and another v. Begum Agha Abdul Karim 
Shorish Kashmiri (PLD 1969 SC 14) observed as follows: 
 
"… It is not to be turned into a roving 
enquiry permitting the detenu to hunt 
for some ground to support his case of 
mala fides nor should an enquiry be 
launched upon merely on the basis of 
vague and indefinite allegations. Mala 
fide must be pleaded with particularity 
and once one kind of mala fide is 
alleged, the detenu should not be 
allowed to adduce proof of any other 
kind of mala fide." 
 
76.  
Malice in law is a term distinct from mala fides 
of fact. In this behalf, reference may be made to the 
Black's Law Dictionary, Ninth Edition, where "implied 
malice" has been defined as follows: 
"Implied malice. Malice inferred from a 
person's 
conduct. 
– 
Also 
termed 
constructive malice; legal malice; malice 
in law. Cf. actual malice." 
 
(emphasis supplied) 
 
CPs.842/2016, etc. 
42 
Bayley, J. in Bromage v. Prosser (4 B. & C. 255) 
observed: 
 
"… 
Malice 
in 
common 
acceptation 
means ill-will against a person, but in 
its legal sense it means a wrongful act, 
done intentionally, without just cause or 
excuse. …" 
 
77.  
These observations were quoted with approval 
by the House of Lords in the case of Allen v. Flood (1897 
A.C. 1) where Lord Watson said: 
 
"…. The root of the principle is that, 
in any legal question, malice depends, 
not upon evil motive which influenced 
the mind of the actor, but upon the 
illegal character of the act which he 
contemplated and committed. …" 
 
78.  
The House of Lords in its judgment, reported 
as Shearer and another v. Shields (1914 A.C. 808) held 
as follows: 
"Between malice in fact and malice in 
law there is a broad distinction which is 
not peculiar to any particular system of 
jurisprudence. A person who inflicts an 
injury 
upon 
another 
person 
in 
contravention of the law is not allowed 
to say that he did so with an innocent 
mind; he is taken to know the law, and 
he must act within the law. He may, 
therefore, be guilty of malice in law, 
although, so far as the state of his mind 
is concerned, he acts ignorantly, and in 
that sense innocently." 
 
79.  
The aforesaid has been quoted with approval 
by the Indian Supreme Court in the judgment, reported 
CPs.842/2016, etc. 
43 
as Addl. Distt. Magistrate, Jubalpur v. Shivakant 
Shukla (AIR 1976 SC 1207) and by the Lahore High 
Court in the judgment, reported as Mian Manzoor 
Ahmad Wattoo v. Federation of Pakistan and 3 others 
(PLD 1997 Lahore 38). 
80.  
Muhammad Haleem, J., as he then was, in the 
case reported as Haji Hashmatullah and 9 others vs. 
Karachi Municipal Corporation and 3 others (PLD 1971 
Karachi 514), observed as follows: 
 
"… An order in violation of law is 
mala fide in law, though actual malice 
may not be present in the mind of the 
authority passing the order." 
 
81.  
The Supreme Court of India in the case, 
reported as State of Andhra Pradesh and others v. 
Goverdhanlal Pitti (AIR 2003 SC 1941) held as under: 
"12. The legal meaning of malice is "ill-
will or spite towards a party and any 
indirect or improper motive in taking an 
action". This is sometimes described as 
"malice in act". "Legal malice" or "malice 
in law" means "something done without 
lawful excuse". In other words, 'it is an 
act done wrongfully and willfully without 
reasonable or probable cause, and not 
necessarily an act done from ill feeling 
and spite'. It is a deliberate act in 
disregard of the rights of others. (See 
Words and Phrases legally defined in 
Third 
Edition, 
London 
Butterworths 
1989.)" 
 
CPs.842/2016, etc. 
44 
82.  
All judicial and quasi-judicial forums for that 
matter even the Executive Authorities exercise only the 
powers conferred upon them by law so as to fulfill the 
mandate of such law and to achieve its declared and 
self-evident purpose. However, where any action is taken 
or order passed not with the intention of fulfilling its 
mandate or to achieve its purpose but is inspired by a 
collateral purpose or instigated by a personal motive to 
wrongfully hurt somebody or benefit oneself or another, 
it is said to suffer from malice of facts.  In 
such 
cases, 
the seat of the malice or bad faith is the evil mind of the 
person taking the action be it spite or personal bias or 
ulterior motive. Mere allegations, in this behalf, do not 
suffice. Malice of fact must be pleaded and established 
at least prima facie on record through supporting 
material.  
83.  
All persons purporting to act under a law are 
presumed to be aware of it. Hence, where an action 
taken is so unreasonable, improbable or blatantly illegal 
that it ceases to be an action countenanced or 
contemplated by the law under which it is purportedly 
taken malice will be implied and act would be deemed to 
suffer from malice in law or constructive malice. Strict 
CPs.842/2016, etc. 
45 
proof of bad faith or collateral propose in such cases 
may not be required. 
84.  
Having explored the concept of malice in law to 
the extent of its most liberal connotation, we cannot lose 
sight of the fact that the jurisdiction exercised by the 
learned High Court, in this behalf, has to be navigated 
through a non-obstantive provision in the Constitution 
i.e. Article 199(3), reproduced herein above. In this 
behalf, it may perhaps be appropriated to refer the note 
of caution expressed in the judgment of this Court, 
reported 
as 
Chief 
Justice 
of 
Pakistan 
Iftikhar 
Muhammad 
Chaudhry 
v. President 
of 
Pakistan 
through Secretary and others (PLD 2010 SC 61), 
wherein it has been observed as follows:  
"… This is settled principle of law that 
constitutional protection and immunity 
of judicial review in performance of 
constitutional duty cannot be extended 
to the mala fide acts and actions, 
therefore distinction must be drawn 
between malice in fact and malice in 
law for the purpose of interpretation of 
the 
relevant 
provision 
of 
the 
Constitution or a statute so that an 
impression must not be created that 
such provision has been amended, 
altered or reconstituted which may 
make 
the 
same 
redundant. 
The 
Supreme Court has always been careful 
and 
conscious 
in 
interpreting 
the 
Constitution so as in a manner that it 
may not create chaos or conflict or 
CPs.842/2016, etc. 
46 
make 
the 
provision 
ineffective 
or 
nullified." 
 
85.  
This 
Court 
in 
the 
specific 
context 
of 
challenging the sentences and convictions awarded by 
the FGCM in the case, reported as Ex-gunner 
Muhammad Mushtaq and another v. Secretary Ministry 
of Defence through Chief of Army Staff and others (2015 
SCMR 1071), after examining the previous case law on 
the subject, observed as follows: 
"9. … Neither the order passed by the 
Field General Court Martial is a case of 
no evidence nor the evidence led by the 
prosecution is insufficient. There is 
sufficient material available to prove the 
guilt of the appellants. In absence of any 
mala fide on the part of the prosecution, 
the conviction and sentences awarded to 
the appellants by the Field General 
Court Martial cannot be stamped to be 
coram non judice. …"                
 
86.   
In the case reported as Ex. Lt.-Col. Anwar Aziz 
(PA-7122) v. Federation of Pakistan through Secretary, 
Ministry of Defence, Rawalpindi and 2 others (PLD 2001 
SC 549), it was held as under: 
 
 
“8. 
This Court can interfere only in 
extraordinary cases involving question of 
jurisdictional defect when proceedings 
before that forum become coram non 
judice or mala fide. …” 
 
87.  
Again after an overview of the case law on the 
subject, this Court in the case of Ghulam Abbas v. 
CPs.842/2016, etc. 
47 
Federation of Pakistan through Secretary, Ministry of 
Defence and others (2014 SCMR 849), held as follows: 
6. … It would further be seen that the 
High 
Court 
in 
its 
constitutional 
jurisdiction is not a Court of Appeal and 
hence is not empowered to analyze each 
and every piece of evidence in order to 
return a verdict. In this regard its 
jurisdiction would be limited to scanning 
the evidence in order to ensure that the 
accused has been given a fair trial. 
Indeed, in the case of Sabur Rehman v. 
The Government of Sindh (supra) it was 
observed by this Court (majority view), 
"That in some of the decided cases it has 
been held that if a finding is based on no 
evidence it will be a case of without 
jurisdiction but again the basic question 
is as to whether the High Court in 
exercise of constitutional jurisdiction or 
this Court while hearing an appeal 
arising out of a refusal of the High Court 
to set aside the conviction can take 
upon itself the role of an Appellate Court 
to reappraise the entire evidence on 
record and to analyze it and then to 
conclude that it is a case of no evidence 
in order to render the conviction as 
without jurisdiction. In my humble 
opinion, this is not permissible. The 
High Court, after going through the 
record, was satisfied that it was not a 
case of no evidence. In our view, the 
approach of the High Court was correct 
that it had not reappraised the evidence 
and had not analyzed the same in the 
judgment as it was not hearing a regular 
appeal". We would respectfully agree 
with the majority view in the instant 
case but would hasten to add that where 
a finding is perverse or based on no 
evidence at all, then certainly the High 
Court in exercise of its constitutional 
jurisdiction could interfere." 
 
"7. 
Consequently, in order to do full 
justice to the petitioner, we have with 
CPs.842/2016, etc. 
48 
the 
assistance 
of 
learned 
Advocate 
Supreme 
Court, 
gone 
through 
the 
evidence and we do not find that either 
it is a case of no evidence or that 
evidence led by the prosecution was 
insufficient to convict the petitioner. 
Indeed, the victim has himself very 
candidly 
described 
the 
petitioner's 
forced 
sexual 
encounter 
when 
he 
committed the unnatural offence. This 
has been corroborated by the medical 
evidence on record." 
 
 
88.   
In the case reported as Ex. Lt.-Col. Anwar Aziz 
(PA-7122) (supra), it was held as under: 
"6. As per record it is noticed that 
petitioner had candidly admitted the 
jurisdiction 
of 
Field 
General 
Court 
Martial, the trial Court; and that of the 
Court of Appeals, the Appellate Court. 
Admittedly he did not challenge the 
jurisdiction of the Army Courts at any 
stage. He voluntarily surrendered to 
their jurisdiction and remained silent 
and contested the proceedings fully. It 
was 
after 
exhausting 
the 
remedies 
available to him according to the Act, he 
resorted 
to 
the 
Constitutional 
jurisdiction of the High Court without 
any 
legal 
justification. The learned 
counsel 
of 
the 
petitioner 
frankly 
conceded that during the hearing of the 
petition before the High Court the 
petitioner had accepted the jurisdiction 
of Army Courts and failed to convince 
that the conviction was either mala fide 
or 
coram 
non 
judice 
or 
without 
jurisdiction. 
The 
petitioner 
being 
member of Armed Forces was thus 
rightly tried, convicted and sentenced by 
the properly constituted forums under 
the Act, as such his case does not 
attract 
the 
question 
of 
public 
importance." 
 
CPs.842/2016, etc. 
49 
89.   
In the case of Mushtaq Ahmed and others v.  
Secretary, Ministry of Defence through Chief of Air and 
Army Staff and others (PLD 2007 SC 405), against the 
convictions and sentences awarded by the FGCM, the 
contention raised pertaining to the “merits” of the case 
was rejected in the following terms: 
"33. In this behalf it may be noted that 
these are the questions which relate to 
the merits of the case. Further more, 
during the trial no such objection was 
raised on behalf of the appellants, 
therefore, the same is not entertainable 
for want of jurisdiction of the High 
Court, as concluded herein above." 
90.  
From the above law as declared through 
various precedents, it can be gathered that any 
proceedings taken, convictions and sentences awarded 
by the FGCM can be called into question on the ground 
of mala fides of fact i.e. being tainted with bias or bad 
faith or taken for a collateral purpose or inspired by a 
personal motive to hurt a person or benefit oneself or 
another. The mere allegation that an action has been 
taken wrongly is not sufficient to establish mala fide of 
facts. Specific allegations of the collateral purpose or an 
ulterior motive must be made and proved to the 
satisfaction of the Court.  
CPs.842/2016, etc. 
50 
91.  
A challenge can also be thrown on the 
independent ground of malice in law or constructive or 
implied malice for which purpose it is sufficient to 
establish that the action complained of was not only 
illegal but so unreasonable and improbable that it 
cannot be said to be contemplated or countenanced by 
the law whereunder such action has purportedly been 
taken. It would include an act done wrongfully and 
willfully without reasonable or probable justification. 
Unlike cases of malice in fact evil intention need not 
necessarily exist or required to be proved. Any action 
suffering from mala fides of fact or malice in law 
constitutes a fraud upon the law and is without 
jurisdiction. 
92.  
Similarly, if there is a fundamental legal flaw 
in the constitution of the forum (in our case FGCM) the 
actions taken thereby would be coram non judice, hence, 
also without jurisdiction.  
93.  
It may be noted that the actions complained of 
can even otherwise be without jurisdiction, a separate 
and independent ground available to challenge the 
sentences and convictions of the FGCM, therefore, it 
must necessarily be examined whether the FGCM had 
CPs.842/2016, etc. 
51 
the jurisdiction over the person tried and the offence for 
which such trial has taken place and to ascertain 
existence or otherwise of any other defect or a gross 
illegality in the exercise of jurisdiction denuding the 
same of validity.  
However, we cannot lose sight of the non-
obstantive provision [in the Constitution i.e. Article 
199(3)] impeding the exercise the powers of Judicial 
Review by the High Court under Article 199 of the 
Constitution. Consequently, the boundaries of the 
available jurisdiction cannot be pushed so as to negate 
and frustrate the said provision of the Constitution. An 
exception to the rule barring exercise of jurisdiction 
cannot be extended so as to defeat and destroy the rule 
itself. It is by now a well settled proposition of law, as is 
obvious from the judgments of this Court, referred to 
and reproduced hereinabove, that the powers of Judicial 
Review under Article 199 of the Constitution of the 
Islamic Republic of Pakistan, 1973, against the 
sentences and convictions of the FGCM is not legally 
identical to the powers of an Appellate Court. The 
evidence produced cannot be analyzed in detail to 
displace any reasonable or probable conclusion drawn 
CPs.842/2016, etc. 
52 
by the FGCM nor can the High Court venture into the 
realm of the "merits" of the case. However, the learned 
High Court can always satisfy itself that it is not a case 
of no evidence or insufficient evidence or the absence of 
jurisdiction. 
94.  
It is in the above backdrop, the contentions of 
the learned counsels in respect of each individual's case 
at hand needs to be examined.    
95.  
Subject matter of Civil Petition for Leave to 
Appeal No.842 of 2016 is the conviction and sentence 
awarded to a civilian Said Zaman Khan (Convict) son of 
Said Nawas Khan by a FGCM convened under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
Army (Amendment) Act, 2015. The Convict was accused 
of several counts of the commission of offences of being 
a Member of a known religiously motivated terrorist 
organization and attacking, alongwith others, the Armed 
Forces of Pakistan, while armed with deadly weapons 
and thereby causing death of several Army personnel. 
The place of occurrence, it is alleged, was North 
Waziristan.  
 
The Convict was accused of the commission of an 
offence under clause 2(1)(d)(iii) of the Pakistan Army Act, 
CPs.842/2016, etc. 
53 
1952, 
as 
incorporated 
by 
the 
Pakistan 
Army 
(Amendment) Act, 2015. Hence, by operation of law 
became subject to the Pakistan Army Act, 1952, as 
amended by the Pakistan Army (Amendment) Act, 2015, 
in view of Section 2(1) thereof, therefore, the Convict 
became liable to be dealt with under the Pakistan Army 
Act, including by way of trial thereunder by a FGCM.  
The offence of which the Convict was accused is 
obviously punishable under the ordinary law of the 
lands triable by a Criminal Court, hence, constituted a 
"civil offence" as defined by sub-section (3) of Section 8 
and liable to be tried by the FGCM in view of the 
provisions of Section 59 of the said Act. 
It may be noted that no new offence has been 
created and only a change of Forum has been brought 
about by the Pakistan Army (Amendment) Act, 2015. 
The date of occurrence has no real significance. The 
offence in question as noted above is a "civil offence", as 
defined in Sections 8(3) of the Pakistan Army Act, and 
was thus not only triable by the FGCM per-se but also 
regardless of the date when the offence was committed, 
as is clear not only from the First Proviso to Section 
2(1)(d)(iii) but also Section 59(4) of the Pakistan Army 
CPs.842/2016, etc. 
54 
Act, which is reproduced hereunder for ease of 
reference: 
59. Civil Offences.—(4) Notwithstanding 
anything contained in this Act or in any 
other law for the time being in force a 
person who becomes subject to this Act by 
reason of his being accused of an offence 
mentioned in clause (d) of sub-section (1) 
of section 2 shall be liable to be tried or 
otherwise dealt with under this Act for 
such offence as if the offence were an 
offence 
against 
this 
Act 
and 
were 
committed at a time when such person 
was subject to this Act; and the provisions 
of 
this 
section 
shall 
have 
effect 
accordingly.” 
 
96.   
From the aforesaid it appears that in view of 
the nature of the offences of which, the Convict was 
accused of, he became subject to the Pakistan Army Act 
and thus liable to be tried by the FGCM, for such 
offences regardless of the fact where he became subject 
to the Pakistan Army Act or when the offence was 
committed. Therefore, the FGCM was vested with the 
jurisdiction to proceed against the Convict. Hence, the 
conviction and sentence cannot be held to be without 
jurisdiction on this account especially, as the learned 
counsel for the Petitioner was unable to point out any 
jurisdictional defect, in this behalf. Furthermore, during 
the course of the trial, the Convict did not object to the 
CPs.842/2016, etc. 
55 
jurisdiction of the FGCM, when granted an opportunity 
to do so, as is evident from the record. 
97.  
The learned counsels for the Petitioners 
complained of limited access to the record of the 
proceedings conducted by the FGCM. We cannot ignore 
the fact that in view of the peculiar nature of the 
offences for the commission whereof the Convicts have 
been accused, it was imperative that efforts should be 
made to ensure the security and safety of the Members 
of the FGCM, witnesses produced, the Prosecuting and 
the Defending Officers and the Interpreters. Such 
sensitivity necessitated by the existing extra-ordinary 
circumstances has been reflected in Section 2-C of the 
Pakistan Army Act, incorporated through a subsequent 
Amending Act dated 19.11.2015. In the instant cases 
through specific Order passed by this Court, all the 
learned counsels were permitted to examine the record 
of the proceedings of the FGCM, which has been made 
available to this Court. It has also been noticed that at 
no point of time after the confirmation of the sentence 
by the FGCM, any application was filed to the 
Competent Authority for the supply of the copies of the 
proceedings, if so required, in terms of Rule 130 of the 
CPs.842/2016, etc. 
56 
Pakistan Army Act Rules, 1954. Such applications were 
not even moved during the pendency of the proceedings 
before the High Courts or even before this Court. In the 
circumstances, we are not persuaded that any prejudice 
has been caused to the Petitioners, in this behalf.      
98.  
At no point of time during the course of trial 
by the FGCM or the pendency of the proceedings before 
the High Court or even before this Court any allegation 
of specific mala fides of fact were made against the 
Members of the FGCM. It is not the case of the 
Petitioners that any Member of the FGCM either had any 
personal bias against the Convict or established on 
record that any proceeding or conviction by the FGCM 
was the result of any evil intention of any Member 
thereof or otherwise conducted in bad faith for a 
collateral purpose. It has been noticed that during the 
course of proceedings, the Convict was specifically 
inquired from as to whether he had any objection 
against any Member of the FGCM. He responded in the 
negative, which fact is apparent from the record of the 
proceedings. In the above circumstances, no case for 
mala fides of fact has been made out. Consequently, the 
CPs.842/2016, etc. 
57 
conviction and sentence of the Convict cannot be set 
aside on the ground of mala fides of fact.  
99.  
It is not the case of the Petitioner that the 
FGCM was not duly convened and constituted in terms 
of the Pakistan Army Act, 1952, as amended. No 
illegality or infirmity, in this behalf, was pointed out or 
noticed. In the circumstances, the conviction and 
sentence cannot be said to be coram non judice. 
100.  
The learned counsels for the Petitioners, by 
relying 
upon 
Article 
10 
sub-article 
(2) 
of 
the 
Constitution, contended that the trial before the FGCM 
was vitiated as the Convict was not defended by a Civil 
Defence Counsel or Legal Practitioner of his own choice. 
101.  
The convict was tried under the Pakistan Army 
Act, 
1952, 
as 
amended 
by 
the 
Pakistan Army 
(Amendment) Act, 2015. This Court in its judgment in 
the case of District Bar Association, Rawalpindi and 
others (supra) has held that the Pakistan Army Act, 
1952, as amended by the Pakistan Army (Amendment) 
Act, 2015, was validly and effectively incorporated 
through the Amendment in the First Schedule to the 
Constitution, as a consequence whereof, the provisions 
thereof cannot be called into question on the ground of 
CPs.842/2016, etc. 
58 
being in violation of the Fundamental Rights guaranteed 
under the Constitution in view of Article 8 sub-article 
(3).  
 
Be that as it may, it is, even otherwise, apparent 
from the record that prior to the commencement of the 
trial, the Convict was specifically asked by the FGCM 
whether he needed an adjournment to prepare his 
defence or to engage a Civil Defence Counsel. The 
Convict responded in the negative. In the above 
circumstances, a Defending Officer was appointed in 
terms of Rule 81 of the Pakistan Army Act Rules, 1954. 
Such a course of action is in accordance with the 
applicable law and the dictum of this Court, as laid 
down 
in 
the 
judgment, 
reported 
as 
Ex-Gunner 
Muhammad Mushtaq and another (supra). Thus, the 
contentions, in this behalf, are misconceived.  
102.  
It was also urged on behalf of the Petitioner 
that the trial by the FGCM in the instant case was 
invalid in view of Section 91 of the Pakistan Army Act, 
1952, as the period of more than three years had passed 
between the alleged occurrence and the commencement 
of the trial. The Convict, being subject to the Pakistan 
Army Act, 1952, was tried for the civil offence in terms of 
CPs.842/2016, etc. 
59 
Section 59. The provisions of Section 91 were thus not 
attracted, as a trial for a civil offence under Section 59 
has been specifically excluded from the operation of 
Section 91 as is mentioned therein. Thus, the 
contentions of the learned counsel, in this behalf, 
cannot be accepted.   
103.  
The nature and extent of the power of Judicial 
Review in matters arising from an action taken under 
the Pakistan Army Act, 1952, has by and large been 
settled by this Court through its various judgments, 
referred to above. It now stands clarified that neither the 
High Court nor this Court can sit in appeal over the 
findings of the FGCM or undertake an exercise of 
analyzing the evidence produced before it or dwell into 
the "merits" of the case. However, we have scanned the 
evidence produced and proceedings conducted by the 
FGCM. The Convict pleaded guilty to the charges, which 
were altered to not guilty by operation of the law. There 
was a judicial confession of the Convict before a learned 
Judicial Magistrate, which was proved in evidence by 
the said Judicial Magistrate, who appeared as a witness. 
Such confession was never retracted by the Convict. 
Other relevant evidence, including eye witnesses of the 
CPs.842/2016, etc. 
60 
occurrence 
was 
also 
produced. 
The 
prosecution 
witnesses made their statements on Oath and were 
cross-examined by the Defending Officer. Opportunity to 
produce evidence in defence was given, which was 
declined. The Convict was permitted to address the 
Court and made a statement, wherein he again admitted 
his guilt. In the above circumstances, it is not possible 
for us to conclude that it was a case of no evidence or 
insufficient evidence nor is it possible to hold that the 
conclusions 
drawn 
by 
the 
FGCM 
are 
blatantly 
unreasonable or wholly improbable. 
104.  
A perusal of the record of the FGCM reveals 
that in order to ensure a fair trial and to protect the 
rights of the Convict, the relevant Rules were complied 
with. The Summary of evidence had been taken and was 
laid before the FGCM, as is apparent from the record of 
the proceedings thereof. An Interpreter was appointed 
with the consent of the Convict in terms of Rule 91 of 
the Pakistan Army Act Rules, 1954. The nature of the 
offence for the commission whereof, the Convict was 
charged, was explained to him as too the possible 
sentence that would be awarded, as required by Rule 
95. He was given an opportunity to prepare his defence 
CPs.842/2016, etc. 
61 
and engage Civil Defence Counsel, if he so desired, in 
terms of Rules 23 and 24. On his exercising the option 
not to do so, a Defending Officer was appointed in terms 
of Rule 81. He was given an opportunity to object to the 
constitution of the FGCM and to the Prosecutor as well 
as the Defending Officer, in terms of Section 104 and 
Rule 35 also. No objection, in this behalf, was raised. 
The Members of the FGCM, the Prosecutor, the 
Defending Officer and the Interpreter were duly sworn 
in, as required by Rules 36 and 37. The charge was 
formally framed to which incidentally, the Convict 
pleaded guilty. The evidence was recorded on Oath. An 
opportunity to cross-examine was granted, which was 
availed off and an opportunity was also given to produce 
evidence in defence in terms of Rule 142, which was 
declined. He was also allowed to record his own 
statement and to address the Court in terms of Rule 143 
wherein he admitted his guilt. The sentence was passed, 
which has been confirmed in accordance with Section 
130 and the Appeal therefrom was dismissed by the 
Competent Authority. It appears that the provisions of 
the 
Pakistan 
Army 
Act 
and 
the 
Rules 
framed 
thereunder, applicable to the trial at hand have not been 
CPs.842/2016, etc. 
62 
violated. Even otherwise, the procedural defects, if any, 
would not vitiate the trial in view of Rule 132 of the 
Pakistan Army Act Rules, 1954 nor did the High Court 
have the jurisdiction to enter into the domain of the 
procedural irregularities in view of the judgment, 
reported as Mrs. Shahida Zahir Abbasi and 4 others 
(supra), especially as no prejudice appears to have been 
caused to the Convict nor any such prejudice has been 
pointed out by the learned counsel or specifically 
pleaded before the High Court. 
 
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict are of little 
consequence and do not vitiate the trial by the FGCM, 
as has been held by this Court in the judgment, 
reported as Mrs. Shahida Zahir Abbasi and 4 others 
(supra). 
105.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
CPs.842/2016, etc. 
63 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
mala fides of facts or law or otherwise was without 
jurisdiction or coram non judice. 
106.  
In view of the above, the Convict was subject 
to the Pakistan Army Act, 1952, as amended by the 
Pakistan Army (Amendment) Act, 2015, and liable to be 
tried thereunder and the offence was also triable by the 
FGCM, 
hence, 
the 
proceedings 
are 
not 
without 
jurisdiction. No mala fides of fact were pleaded or proved 
on record. The conviction did not suffer from coram non 
judice. No case of malice in law has been made out. 
Consequently, no ground for interference with the 
impugned Order dated 12.05.2016 of the Lahore High 
Court, Bahawalpur Bench, has been made out. 
Accordingly, this Civil Petition for Leave to Appeal 
No.842 of 2016, being without merit is liable to be 
dismissed.  
107.  
Civil Petition for Leave to Appeal No.3331 of 
2015, arises from the conviction and sentence awarded 
CPs.842/2016, etc. 
64 
to a civilian Haider Ali alias Asmatullah (Convict) son of 
Zahir Shah by a FGCM, convened under the Pakistan 
Army Act, 1952, as amended by the Pakistan Army 
(Amendment) Act, 2015. Haider Ali was accused of the 
offences of being Member of a known religiously 
motivated terrorist organization, who, alongwith others, 
attacked the Armed Forces of Pakistan, causing the 
death of Army personnel. He was also accused 
separately of kidnapping, attacking and causing the 
death of civilians and the officials of the Law 
Enforcement Agencies and for abetment in the killing of 
the civilians. He was also charged with the possession of 
arms, ammunitions and explosives. 
108.  
The learned counsel for the Petitioner at the 
very outset contended that the Convict Haider Ali was a 
minor at the time of the commission of the alleged 
offence, hence, could not be tried by the FGCM. The 
learned Deputy Attorney General for Pakistan not only 
disputed such assertion on the factual plane but also 
contended that the Pakistan Army Act, 1952, in view of 
Section 4 of the Pakistan Army (Amendment) Act, 2015, 
had an overriding effect over all the other laws. Be that 
as it may, the question of the age of Convict Haider Ali 
CPs.842/2016, etc. 
65 
was raised before the learned Peshawar High Court by 
the Petitioner. However, by way of the impugned 
judgment, the learned High Court was not satisfied that 
the Convict Haider Ali was a minor at any material point 
of time and understandably so, as the primary basis for 
such assertion was a Birth Certificate, purportedly 
pertaining to the Convict Haider Ali. The entry in the 
said Certificate regarding the birth of the Convict Haider 
Ali was inserted in the record on 05.08.2015, after the 
Writ Petition had been filed before the learned High 
Court and many decades after the alleged birth of the 
Convict Haider Ali. The other documents were private 
documents, having no evidentiary significance. We are 
not persuaded to interfere in the said findings. 
109.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of Section 8(3) of the Pakistan 
Army Act, therefore, the offences were liable to be tried 
by the FGCM in view of Section 59 of the Pakistan Army 
Act, 1952. The offences for which the accused was 
charged fell within the purview of Section 2(1)(d)(iii) of 
the Pakistan Army Act, 1952, hence, in view of Section 
CPs.842/2016, etc. 
66 
2(1), the Convict, by operation of law was subject to the 
Pakistan Army Act. In the circumstances, the FGCM had 
the jurisdiction to try the Convict for the offences of 
which he was accused that too irrespective of the point 
of time when the offence was committed. It was also 
noticed that the Convict did not object to his trial by the 
FGCM, as is evident from the record of the proceedings. 
In the circumstances, the conviction and sentence 
awarded by the FGCM do not suffer from want of 
inherent jurisdiction.  
110.  
The contention of the learned counsel for the 
Petitioner regarding the alleged lack of full access to the 
record is also misconceived as such access was given in 
terms of a specific Order passed by this Court. It has 
also been noticed that no application in terms of Rule 
130 of the Pakistan Army Act Rules, 1954, was ever filed 
to the Competent Authority for the supply of copies of 
the proceedings of the FGCM at any point of time, not 
even when the matter was pending before the learned 
High Court or before this Court.  
111.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
Members of the FGCM or any of them had a personal 
CPs.842/2016, etc. 
67 
bias against the Convict or that the proceedings were 
conducted in bad faith for a collateral purpose. The 
record reveals that the Convict was given an opportunity 
to object to the Members of the FGCM but he did not 
raise any objection, in this behalf. In the circumstances, 
no case for mala fides of fact has been made out 
warranting interference by the learned High Court or by 
this Court.  
112.  
The learned counsel for the Petitioner had 
contended that the Convict was not defended by a Civil 
Defence Counsel of his own choice before the FGCM. 
Reference, in this behalf, was made to Article 10(2) of 
the Constitution. The Convict was tried under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
Army (Amendment) Act, 2015, which as per the 
judgment of this Court, reported as District Bar 
Association, 
Rawalpindi 
(supra), 
was 
validly 
and 
effectively incorporated in the First Schedule of the 
Constitution, hence, the provisions of the Pakistan Army 
Act, 
1952, 
as 
amended 
by 
the 
Pakistan Army 
(Amendment) Act, 2015, in view of Article 8(3) of the 
Constitution, are immune from challenge on the ground 
of being in violation of the Fundamental Rights, 
CPs.842/2016, etc. 
68 
including those guaranteed by Articles 10 and 10-A. 
Furthermore, the record reveals that the Convict did not 
claim to be defended by a Civil Defence Counsel, 
therefore, a Defending Officer was appointed in 
accordance with Rule 81 of the Pakistan Army Act 
Rules, 1954. Such a course of action is in consonance 
with the law, as has been held by this Court in the case 
of Muhammad Mushtaq and another (supra).  
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict are of little 
consequence and do not vitiate the trial by the FGCM, 
as has been held by this Court in the judgment, 
reported as Mrs. Shahida Zahir Abbasi and 4 others 
(supra). 
113.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore, Section 91 of the Pakistan 
Army Act, was not applicable, as a consequence 
whereof, the period of time between the date of 
occurrence and the date of the trial has no material 
effect. The examination of the record of the FGCM 
reveals that all the procedural requirements, more 
particularly, the Rules that ensure a fair trial and 
CPs.842/2016, etc. 
69 
preclude prejudice to the accused were complied with. 
Summary of evidence had been taken and was laid 
before the FGCM, as is apparent from the record of the 
proceedings thereof. The nature of the charge was 
explained to him. An interpreter was also appointed. The 
Convict chose not to engage a Civil Defence Counsel, 
hence, a Defending Officer was appointed. He was 
granted an opportunity to object to the Members of the 
FGCM, the Defending Officer and the Interpreter, who 
were all sworn in as required by the law. The charge was 
formally framed to which the Convict pleaded guilty, 
which was altered to not guilty. The prosecution 
witnesses were examined on Oath and subjected to 
cross-examination and an opportunity was given to 
produce evidence in his defence, which was declined. 
The Convict was allowed to make a statement, which 
was so recorded and the Convict again admitted his 
guilt. The sentence has been confirmed in accordance 
with the law.  
114.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, yet, even otherwise, irregularity 
CPs.842/2016, etc. 
70 
if any, stood cured in view of Rule 132 of the Pakistan 
Army Act Rules, 1954, and furthermore, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the learned High Court, as 
has been stated above.  
115.  
It is settled law that while exercising the power 
of Judicial Review in the matters of this nature neither 
the learned High Court nor this Court can sit in appeal 
over the conclusion drawn by the FGCM or analyze the 
evidence produced before it. However, we have examined 
the record in the instant case, the Convict pleaded guilty 
to the charges framed against him. This was altered to 
not guilty in accordance with the law. The evidence, inter 
alia, included a judicial confession, which was proved by 
the learned Judicial Magistrate, who recorded the same 
and appeared as a witness before the FGCM. The 
Convict never retracted from his confession. The 
Convict, on his own, in his statement before the FGCM 
yet again admitted his guilt. In the circumstances, it 
cannot be said that the conclusions drawn by the FGCM 
are based on no evidence or insufficient evidence or are 
otherwise improbable or blatantly unreasonable. The 
learned counsel for the Petitioner has not been able to 
CPs.842/2016, etc. 
71 
persuade us that the conclusions drawn, conviction 
recorded and sentence passed are not as countenanced 
by the law. Hence, no case of malice in law has been 
made out.  
116.  
The examination of the record also reveals that 
the FGCM was constituted and convened in accordance 
with the provisions of the Pakistan Army Act, 1952, and 
the Rules framed thereunder, hence, the conviction and 
sentence do not appear to be coram non judice. 
117.  
In short, it appears from the record that the 
Convict being subject to the Pakistan Army Act was tried 
for the offences triable by the FGCM, which was 
convened and constituted in accordance with the law. 
No personal bias of any Member of the FGCM against 
the Convict has been established nor that the 
proceedings were mala fides or conducted in bad faith 
for a collateral purpose. The FGCM was validly convened 
and constituted, hence, the conviction and sentence was 
not coram non judice. It does not appear to be a case of 
no evidence or insufficient evidence nor the conclusions 
drawn are wholly unreasonable and improbable. No 
illegality in the conduct of the trial exists. The Law and 
CPs.842/2016, etc. 
72 
the Rules, more particularly, those protecting the rights 
of the accused were adhered to.  
118.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
119.  
In this view of the matter, we find ourselves 
unable to interfere with the impugned judgment dated 
14.10.2015 of the learned Peshawar High Court 
dismissing the Constitutional Petition i.e. Writ Petition 
No.2915 of 2015, challenging the conviction and 
sentence of the Convict.     
CPs.842/2016, etc. 
73 
120.  
Civil Petition for Leave to Appeal No.3332 of 
2015, arises from the conviction and sentence awarded 
to a Civilian Qari Zahir Gul alias Qari (Convict) son of 
Rehmat Gul by a FGCM, convened under the Pakistan 
Army Act, 1952, as amended by the Pakistan Army 
(Amendment) Act, 2015. Qari Zahir Gul was accused of 
the offences of being a Member of a known religiously 
motivated terrorist organization, who attacked the 
Armed Forces of Pakistan, causing the injuries to Army 
personnel. He was also accused separately of abducting 
persons for ransom and causing the death of civilians. 
He was also charged with receiving funds from local 
sources for illegal activities.  
121.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of Section 8(3), therefore, the 
offences were liable to be tried by the FGCM in view of 
Section 59 of the Pakistan Army Act, 1952. The offences 
for which the accused was charged fell within the 
purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 
1952, hence, in view of Section 2(1), the Convict by 
operation of law was subject to the Pakistan Army Act. 
CPs.842/2016, etc. 
74 
In the circumstances, the FGCM had the jurisdiction to 
try the Convict for the offences of which he was accused, 
hence, the FGCM, was vested with the requisite 
jurisdiction, in this behalf, that too irrespective to the 
point of time when the offence was committed. It has 
also been noticed that the Convict did not object to his 
trial by the FGCM when afforded an opportunity to do 
so, as is evident from the record of the proceedings. In 
the circumstances, the conviction and sentence awarded 
by the FGCM do not suffer from want of inherent 
jurisdiction.  
122.  
The examination of the record reveals that the 
FGCM was constituted and convened in accordance with 
the provisions of the Pakistan Army Act and the Rules 
framed thereunder, hence, the conviction and sentence 
do not appear to be coram non judice. 
123.  
The contention of the learned counsel for the 
Petitioner regarding the alleged lack of full access to the 
record is also misconceived as such access was given in 
terms of the specific order passed by this Court. It has 
also been noticed that no application was ever filed to 
the Competent Authority for the supply of copies of the 
proceedings of the FGCM in terms of Rule 130 of the 
CPs.842/2016, etc. 
75 
Pakistan Army Act Rules, 1954, at any point of time, not 
even when the matter was pending before the learned 
High Court or before this Court.  
124.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
Members of the FGCM or any of them had a personal 
bias against the Convict or that the proceedings were 
taken in bad faith for a collateral purpose. The record 
reveals that the Convict was given an opportunity to 
object to the Members of the FGCM but he did not raise 
any such objection. In the circumstances, no case of 
mala fides of fact has been made out warranting 
interference by the learned High Court or by this Court.  
125.  
The learned counsel for the Petitioner had 
argued that the Convict was not defended by a Civil 
Defence Counsel of his own choice before the FGCM. In 
this behalf, reference was made to the Article 10(2) of 
the Constitution. The Convict was tried under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
Army (Amendment) Act, 2015, which, as per the 
judgment of this Court, reported as District Bar 
Association, Rawalpindi and others (supra), was validly 
and effectively incorporated in the First Schedule of the 
CPs.842/2016, etc. 
76 
Constitution, hence, in view of Article 8(3) of the 
Constitution, the provisions of the Pakistan Army Act, 
1952, as amended by the Pakistan Army (Amendment) 
Act, 2015, are immune from challenge on the ground of 
being in violation of the Fundamental Rights, including 
those guaranteed by Articles 10 and 10-A. Furthermore, 
the record reveals that the Convict did not seek to be 
defended by a Civil Defence Counsel, therefore, a 
Defending Officer was appointed in accordance with 
Rule 81 of the Pakistan Army Act Rules, 1954. Such a 
course of action is in accordance with the law, as has 
been held by this Court in the case of Muhammad 
Mushtaq and another (supra).  
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict too are of little 
significance and do not vitiate the trial by the FGCM, as 
has been held by this Court in the judgment, reported 
as Mrs. Shahida Zahir Abbasi and 4 others (supra). 
126.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore, Section 91 of the Army 
Act, was not applicable, as a consequence whereof, the 
period between the date of the occurrence and the date 
CPs.842/2016, etc. 
77 
of the trial has no material effect. The examination of the 
record of the FGCM reveals that all the procedural 
requirements, more particularly, the Rules that ensure a 
fair trial and preclude prejudice to the accused were 
complied with. Summary of evidence had been taken 
and was laid before the FGCM, as is apparent from the 
record of the proceedings thereof. The nature of the 
charge was explained to him. An interpreter was also 
appointed. The Convict chose not to engage a Civil 
Defence Counsel, hence, a Defending Officer was 
appointed. He was granted an opportunity to object to 
the Members of the FGCM, the Defending Officer and 
the Interpreter, who were all sworn in according to the 
law. The charge was formally framed to which the 
Convict pleaded guilty, which was altered to not guilty. 
The prosecution witnesses were examined on Oath and 
subjected to cross-examination and an opportunity was 
given to produce evidence in his defence, which was 
declined. The Convict was allowed to make a statement, 
which was so recorded and the Convict again admitted 
his guilt. The sentence has been confirmed in 
accordance with the law.  
CPs.842/2016, etc. 
78 
127.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, yet, even otherwise, irregularity 
if any, stood cured in view of Rule 132 of the Pakistan 
Army Act Rules, 1954, and even otherwise, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the learned High Court, as 
has been stated above.  
128.  
It is settled law that in the exercise of its 
jurisdiction in the instant cases neither the learned High 
Court nor this Court can sit in appeal over the 
conclusion drawn by the FGCM or analyze the evidence 
produced before it. However, we have scanned the 
record of evidence produced and proceedings conducted 
by the FGCM. The Convict pleaded guilty to the charges 
framed against him, which was altered to not guilty in 
accordance with the law. The evidence, inter alia, 
included a judicial confession, which was proved by the 
learned Judicial Magistrate who recorded the same and 
appeared as a witness before the FGCM. The Convict 
never retracted from his confession. The Convict on his 
own in his statement before the FGCM yet again 
CPs.842/2016, etc. 
79 
admitted his guilt. In the circumstances, it cannot be 
said that the conclusions drawn by the FGCM are based 
on no evidence or insufficient evidence or are otherwise 
improbable and unreasonable. The learned counsel for 
the Petitioner has not been able to persuade us that the 
conclusions drawn, conviction recorded and sentence 
passed are not as countenanced by law. Hence, no case 
of malice in law has been made out.  
129.  
In short, it appears from the record that the 
Convict being subject to the Pakistan Army Act was tried 
for the offences triable by the FGCM, which was 
convened and constituted in accordance with the law. 
No personal bias by any Member of the FGCM against 
the Convict has been established nor that the 
proceedings conducted were mala fides or conducted in 
bad faith for a collateral purpose. It does not appear to 
be a case of no evidence or insufficient evidence. No 
illegality in the conduct of the trial exists. The Law and 
the Rules, more particularly, those protecting the rights 
of the accused were adhered to. No case of malice in law 
or coram non judice was made out. 
130.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
CPs.842/2016, etc. 
80 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
131.  
In this view of the matter, we are not 
persuaded to interfere with the impugned judgment 
dated 14.10.2015 of the learned Peshawar High Court 
dismissing the Constitutional Petition i.e. Writ Petition 
No.2979 of 2015, challenging the conviction and 
sentence of the Convict.     
132.  
Civil Petition for Leave to Appeal No.3674 of 
2015, arises from the conviction and sentence awarded 
to a Civilian Ateeq-ur-Rehman (Convict) alias Usman 
son of Ali Rehman by a FGCM, convened under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
CPs.842/2016, etc. 
81 
Army (Amendment) Act, 2015. Ateeq-ur-Rehman was 
accused of the offences of being Member of a known 
religiously 
motivated 
terrorist 
organization, 
who, 
alongwith 
others, 
attacked 
the 
Army 
personnel/ 
employees of a Security Organization through suicide 
bombers and Vehicle Borne Explosive Device (VBIED) 
and thereby caused death of Army personnel and 
civilian, and in the like manner attacking an Education 
Institution. He was also accused of providing funds to a 
terrorist organization. 
133.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of Section 8(3), therefore, the 
offences were liable to be tried by the FGCM in view of 
Section 59 of the Pakistan Army Act, 1952. The offences 
for which the accused was charged fell within the 
purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 
1952, hence, in view of Section 2(1), the Convict by 
operation of law was subject to the Pakistan Army Act. 
In the circumstances, the FGCM had the jurisdiction to 
try the Convict for the offences of which he was accused 
that too irrespective of the point of time when the 
CPs.842/2016, etc. 
82 
offence was committed. It was also noticed that the 
Convict did not object to his trial by the FGCM, as is 
evident from the record of the proceedings. In the 
circumstances, the conviction and sentence awarded by 
the FGCM do not suffer from want of inherent 
jurisdiction.  
134.  
The contention of the learned counsel for the 
Petitioner regarding alleged lack of full access to the 
record is also misconceived as such access was given in 
terms of the specific Order passed by this Court. It has 
also been noticed that no application in terms of Rule 
130 of the Pakistan Army Act Rules, 1954, was ever filed 
with the Competent Authority for the supply of copies of 
the proceedings of the FGCM at any point of time, not 
even when the matter was pending before the learned 
High Court or before this Court.  
135.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
Members of the FGCM or any of them had a personal 
bias against the Convict or the proceedings were 
conducted in bad faith for a collateral purpose. The 
record reveals that the Convict was given an opportunity 
to object the Members of the FGCM but he did not raise 
CPs.842/2016, etc. 
83 
any such objection. In the circumstances, no case for 
mala fides of fact has been made out warranting 
interference by the learned High Court or by this Court.  
136.  
The 
learned 
counsel 
for 
the 
Petitioner 
contended that the Convict was not defended by a Civil 
Defence Counsel of his own choice before the FGCM. In 
this behalf, reference was made to the Article 10(2) of 
the Constitution. The Convict was tried under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
Army (Amendment) Act, 2015, which as per the 
judgment of this Court, reported as District Bar 
Association, Rawalpindi and others (supra) was validly 
and effectively incorporated in the First Schedule of the 
Constitution, hence, the provisions of the Pakistan Army 
Act, 1952, as amended by Pakistan Army (Amendment) 
Act, 2015, in view of Article 8(3) of the Constitution, are 
immune from challenge on the ground of being in 
violation of the Fundamental Rights, including those 
guaranteed by Articles 10 and 10-A. Furthermore, the 
record reveals that the Convict did not seek to be 
defended by a Civil Defence Counsel, therefore, a 
Defending Officer was appointed in accordance with 
Rule 81 of the Pakistan Army Act Rules, 1954. Such a 
CPs.842/2016, etc. 
84 
course of action is in consonance with the law, as has 
been held by this Court in the case of Muhammad 
Mushtaq and another (supra).  
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict are of little 
consequence and do not vitiate the trial by the FGCM, 
as has been held by this Court in the judgment, 
reported as Mrs. Shahida Zahir Abbasi and 4 others 
(supra). 
137.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore, Section 91 of the Pakistan 
Army Act, was not applicable, as a consequence 
whereof, the period of time between the occurrence and 
the trial has no material effect. The examination of the 
record of the FGCM reveals that all the procedural 
requirements, more particularly, the Rules that ensure a 
fair trial and preclude prejudice to the accused were 
complied with. Summary of evidence had been taken 
and was laid before the FGCM, as is apparent from the 
record of the proceedings thereof. The nature of the 
charge was explained to him. An interpreter was also 
appointed. The Convict chose not to engage a Civil 
CPs.842/2016, etc. 
85 
Defence 
Counsel 
thus 
a 
Defending 
Officer 
was 
appointed. He was granted an opportunity to object to 
the Members of the FGCM, the Defending Officer as well 
as the Interpreter, who were all duly sworn in. The 
charge was formally framed to which the Convict 
pleaded guilty. Such plea was altered to not guilty. The 
prosecution witnesses were examined on Oath and 
subjected to cross-examination and an opportunity was 
also given to produce evidence in defence, which was 
declined.  The Convict was allowed to make a statement, 
which was so recorded and the Convict again admitted 
his guilt. The sentence has been confirmed in 
accordance with the law.  
138.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, yet, even otherwise, irregularity 
if any, stood cured in view of Rule 132 of the Pakistan 
Army Act Rules, 1954, and even otherwise, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the High Court, as has 
been stated above.  
CPs.842/2016, etc. 
86 
139.  
It is settled law that while exercising the power 
of Judicial Review in such like cases neither the learned 
High Court nor this Court can sit in appeal over the 
conclusion drawn by the FGCM or analyze the evidence 
produced before it. However, we have scanned the 
record in the instant case. The Convict pleaded guilty to 
the charges framed against him. This was altered to not 
guilty in accordance with law. The evidence, inter alia, 
includes a judicial confession, which was proved by the 
learned Judicial Magistrate, who recorded the same 
while appearing as a witness before the FGCM. The 
Convict never retracted from his confession. The Convict 
on his own in his statement before the FGCM yet again 
admitted his guilt. In the circumstances, it cannot be 
said that the conclusions drawn by the FGCM are based 
on no evidence or insufficient evidence or are otherwise 
improbable or unreasonable. The learned counsel for the 
Petitioner has not been able to persuade us that the 
conclusion drawn, conviction recorded and sentence 
passed are not as countenanced by the law. Hence, no 
case of malice in law has been made out.  
140.  
The examination of the record reveals that the 
FGCM was constituted and convened in accordance with 
CPs.842/2016, etc. 
87 
the provisions of the Pakistan Army Act and the Rules 
framed thereunder, hence, the conviction and sentence 
do not appear to be coram non judice. 
141.  
In short, it appears from the record that the 
Convict, being a subject to the Pakistan Army Act was 
tried for the offences triable by the FGCM, which was 
convened and constituted in accordance with the law. 
No personal bias of any Member of the FGCM against 
the Convict has been established nor that the 
proceedings were mala fides or conducted in bad faith 
for a collateral purpose. It does not appear to be a case 
of no evidence or insufficient evidence nor the 
conclusions drawn blatantly unreasonable or wholly 
improbable. No illegality in the conduct of the trial 
exists. The Law and the Rules, more particularly, those 
protecting the rights of the accused were adhered to. No 
case of malice in law or coram non judice has been made 
out. 
142.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
CPs.842/2016, etc. 
88 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
143.  
In this view of the matter, we are not 
persuaded to interfere with the impugned Order dated 
09.12.2015 of the learned Peshawar High Court 
dismissing the Constitutional Petition i.e. Writ Petition 
No.3219-P of 2015, challenging the conviction and 
sentence of the Convict.     
144.  
In Civil Petition for Leave to Appeal No.3777 of 
2015, a Civilian Taj Muhammad alias Rizwan son of Alaf 
Khan, was convicted and sentenced by a FGCM, 
convened under the Pakistan Army Act, 1952, as 
amended by the Pakistan Army (Amendment) Act, 2015, 
for the offences on several counts of being a Member of a 
known religiously motivated terrorist organization and 
attacking, alongwith others, the Armed Forces of 
CPs.842/2016, etc. 
89 
Pakistan and Law Enforcement Agencies and thereby 
causing death of several soldiers and officials. He was 
also charged of abetting an attack on an Educational 
Institution and separately of causing death of civilians.  
145.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of Section 8(3) of the Pakistan 
Army Act, therefore, the offences were liable to be tried 
by the FGCM in view of Section 59 of the Pakistan Army 
Act, 1952. The offences for which the accused was 
charged fell within the purview of Section 2(1)(d)(iii) of 
the Pakistan Army Act, 1952, hence, in view of Section 
2(1), the Convict by operation of law was subject to the 
Pakistan Army Act. In the circumstances, the FGCM had 
the jurisdiction to try the Convict for the offences of 
which he was accused that too irrespective of the point 
of time when the offence was committed. It has also 
been noticed that the Convict did not object to his trial 
by the FGCM, as is evident from the record of the 
proceedings. In the circumstances, the conviction and 
sentence awarded by the FGCM do not suffer from want 
of inherent jurisdiction.  
CPs.842/2016, etc. 
90 
146.  
The examination of the record reveals that the 
FGCM was constituted and convened in accordance with 
the provisions of the Pakistan Army Act and the Rules 
framed thereunder, hence, the conviction and sentence 
do not appear to be coram non judice. 
147.  
The contention of the learned counsel for the 
Petitioner regarding the alleged lack of full access to the 
record is also misconceived as such access was given in 
terms of a specific Order passed by this Court. It has 
also been noticed that no application in terms of Rule 
130 of the Pakistan Army Act Rules, 1954, was ever filed 
to the Competent Authority for the supply of copies of 
the proceedings of the FGCM at any point of time, not 
even when the matter was pending before the learned 
High Court or before this Court.  
148.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
Members of the FGCM or any of them had a personal 
bias against the Convict or the proceedings have been 
conducted in bad faith for a collateral purpose. The 
record reveals that the Convict was given an opportunity 
to object to the Members of the FGCM but he did not 
raise any such objection. In the circumstances, no case 
CPs.842/2016, etc. 
91 
for mala fides of fact has been made out warranting 
interference by the learned High Court or by this Court.  
149.  
The 
learned 
counsel 
for 
the 
Petitioner 
contended that the Convict was not defended by a Civil 
Defence Counsel of his own choice before the FGCM. In 
this behalf, reference was made to the Article 10(2) of 
the Constitution. The Convict was tried under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
Army (Amendment) Act, 2015, which as per the 
judgment of this Court, reported as District Bar 
Association, 
Rawalpindi 
(supra), 
was 
validly 
and 
effectively incorporated in the First Schedule of the 
Constitution, hence, the provisions of the Pakistan Army 
Act, 
1952, 
as 
amended 
by 
the 
Pakistan Army 
(Amendment) Act, 2015, in view of Article 8(3) of the 
Constitution, are immune from challenge on the ground 
of being in violation of the Fundamental Rights, 
including those guaranteed by Articles 10 and 10-A. 
Furthermore, the record reveals that the Convict did not 
seek to be defended by a Civil Defence Counsel, 
therefore, a Defending Officer was appointed in 
accordance with Rule 81 of the Pakistan Army Act 
Rules, 1954. Such a course of action is in consonance 
CPs.842/2016, etc. 
92 
with the law, as has been held by this Court in the case 
of Muhammad Mushtaq and another (supra).  
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict are of little 
consequence and do not vitiate the trial by the FGCM, 
as has been held by this Court in the judgment, 
reported as Mrs. Shahida Zahir Abbasi and 4 others 
(supra). 
150.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore, Section 91 of the Pakistan 
Army Act, was not applicable, as a consequence 
whereof, the period between the date of occurrence and 
the trial is of no material effect. The examination of the 
record of the FGCM reveals that all the procedural 
requirements, more particularly, the Rules that ensure a 
fair trial and preclude prejudice to the accused were 
complied with. Summary of evidence had been taken 
and was laid before the FGCM, as is apparent from the 
record of the proceedings thereof. The nature of the 
charge was explained to him. An Interpreter was also 
appointed. The Convict chose not to engage a Civil 
Defence 
Counsel 
thus 
a 
Defending 
Officer 
was 
CPs.842/2016, etc. 
93 
appointed. He was granted an opportunity to object to 
the Members of the FGCM, the Defending Officer and 
the Interpreter, who were all duly sworn in. The charge 
was formally framed to which the Convict pleaded guilty. 
The plea was altered to not guilty. The prosecution 
witnesses were examined on Oath and subjected to 
cross-examination and an opportunity was given to 
produce evidence in his defence, which was declined. 
The Convict was allowed to make a statement, which 
was so recorded and the Convict again admitted his 
guilt. The sentence has been confirmed in accordance 
with the law.  
151.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, yet, even otherwise, irregularity 
if any, stood cured in view of Rule 132 of the Pakistan 
Army Act Rules, 1954, and furthermore, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the High Court, as has 
been stated above.  
152.  
It is settled law that in exercise of the 
jurisdiction invoked neither the learned High Court nor 
CPs.842/2016, etc. 
94 
this Court can sit in appeal over the conclusion drawn 
by the FGCM or analyze the evidence produced before it. 
However, we have scanned the record in the instant 
case. The Convict pleaded guilty to the charges framed 
against him. The plea was altered to not guilty in 
accordance with the law. The evidence, inter alia, 
included a judicial confession, which was proved by the 
learned Judicial Magistrate, who recorded the same and 
appeared as a witness before the FGCM. The Convict 
never retracted from his confession. The Convict on his 
own in his statement before the FGCM yet again 
admitted his guilt. In the circumstances, it cannot be 
said that the conclusions drawn by the FGCM are based 
on no evidence or insufficient evidence or are otherwise 
improbable and wholly unreasonable. The learned 
counsel for the Petitioner has not been able to persuade 
us that the conclusion drawn, conviction recorded and 
sentence passed are not as countenanced by law. Hence, 
no case of malice in law has been made out.  
153.  
In short, it appears from the record that the 
Convict, being subject to the Pakistan Army Act was 
tried for an offence triable by the FGCM, which was 
convened and constituted in accordance with the law. 
CPs.842/2016, etc. 
95 
No personal bias of any Member of the FGCM against 
the Convict has been established nor the proceedings 
were mala fide or conducted in bad faith for a collateral 
purpose. It does not appear to be a case of no evidence 
or insufficient evidence nor the conclusions drawn are 
blatantly unreasonable or improbable. No illegality in 
the conduct of the trial exists. The Law and the Rules, 
more particularly, those protecting the rights of the 
accused were adhered to. No case of malice in law or 
coram non judice was made out. 
154.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
CPs.842/2016, etc. 
96 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
155.  
In this view of the matter, we are not 
persuaded to interfere with the impugned Order of the 
learned 
Peshawar 
High 
Court 
dated 
09.12.2015, 
dismissing the Constitution Petition challenging the 
conviction and sentence of the Convict.     
156.  
Civil Petition for Leave to Appeal No.06 of 
2016, arises from the conviction and sentence awarded 
to a Civilian Qari Zubair Muhammad alias Ameer Sahib 
(Convict) son of Sakhi Muhammad by a FGCM, 
convened under the Pakistan Army Act, 1952, as 
amended by the Pakistan Army (Amendment) Act, 2015. 
Qari Zubair Muhammad was accused of the offences of 
being a Member of a known religiously motivated 
terrorist organization, who, alongwith others, attacked 
civilians and officials of the Law Enforcement Agencies, 
causing death and injuries. Qari Zubair Muhammad 
was also accused of using, alongwith others, Improvised 
Explosive 
Devices (IEDs), which resulted 
in 
the 
destruction of various shops. He was also accused of 
abetment in the use of explosives at a place of worship, 
causing the death and injuries to the Army personnel as 
CPs.842/2016, etc. 
97 
well as the civilians. He was also charged with the 
possession of arms, ammunitions and explosives. 
157.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of sub-section (3) of Section 8 of 
the Pakistan Army Act, therefore, the offences were 
liable to be tried by the FGCM in view of Section 59 of 
the Pakistan Army Act, 1952. The offences for which the 
accused was charged fell within the purview of Section 
2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view 
of Section 2(1), the Convict by operation of law was 
subject to the Pakistan Army Act. In the circumstances, 
the FGCM had the jurisdiction to try the Convict for the 
offences of which he was accused that too irrespective of 
the point of time the offence was committed. It has also 
been noticed that the Convict did not object to his trial 
by the FGCM, as is evident from the record of the 
proceedings. In the circumstances, the conviction and 
sentence awarded by the FGCM do not suffer from want 
of inherent jurisdiction.  
158.  
The contention of the learned counsel for the 
Petitioner regarding the alleged lack of full access to the 
CPs.842/2016, etc. 
98 
record is also misconceived as such access in this case 
was also given in terms of a specific Order passed by 
this Court. It has also been noticed that no application 
in terms of Rule 130 of the Pakistan Army Act Rules, 
1954, was ever filed to the Competent Authority for the 
supply of copies of the proceedings of the FGCM at any 
point of time, not even when the matter was pending 
before the learned High Court or before this Court.  
159.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
Members of the FGCM or any of them had a personal 
bias against the Convict or the proceedings have been 
conducted in bad faith for a collateral purpose. The 
record reveals that the Convict was afforded an 
opportunity to object to the Members of the FGCM but 
he 
did 
not 
raise 
any 
such 
objection. 
In 
the 
circumstances, no case for mala fides of fact has been 
made out warranting interference by the learned High 
Court or by this Court.  
160.  
The 
learned 
counsel 
for 
the 
Petitioner 
contended that the Convict was not defended by a Civil 
Defence Counsel of his own choice before the FGCM. In 
this behalf, reference was made to the Article 10(2) of 
CPs.842/2016, etc. 
99 
the Constitution. The Convict was tried under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
Army (Amendment) Act, 2015, which as per the 
judgment of this Court, reported as District Bar 
Association, Rawalpindi and others (supra), was validly 
and effectively incorporated in the First Schedule of the 
Constitution, hence, in view of the Article 8(3) of the 
Constitution the provisions of the Pakistan Army Act, 
1952, as amended by the Pakistan Army (Amendment) 
Act, 2015, are immune from challenge on the ground of 
being in violation of the Fundamental Rights, including 
those guaranteed by Articles 10 and 10-A. Furthermore, 
the record reveals that the Convict did not seek to be 
defended by a Civil Defence Counsel, therefore, a 
Defending Officer was appointed in accordance with 
Rule 81 of the Pakistan Army Act Rules, 1954. Such a 
course of action is in consonance with the law, as has 
been held by this Court in the case of Muhammad 
Mushtaq and another. (supra).  
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict are of little 
consequence and do not vitiate the trial by the FGCM, 
CPs.842/2016, etc. 
100 
as has been held by this Court in the case of Mrs. 
Shahida Zahir Abbas and 4 others (supra). 
161.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore, Section 91 of the Pakistan 
Army Act, was not applicable, as a consequence 
whereof, the period between the date of occurrence and 
the trial is of no material effect. The examination of the 
record of the FGCM reveals that all the procedural 
requirements, more particularly, the Rules that ensure a 
fair trial and preclude prejudice to the accused were 
complied with. Summary of evidence had been taken 
and was laid before the FGCM, as is apparent from the 
record of the proceedings thereof. The nature of the 
charge was explained to him. An Interpreter was also 
appointed. The Convict chose not to engage a Civil 
Defence 
Counsel 
thus 
a 
Defending 
Officer 
was 
appointed. He was granted an opportunity to object to 
the Members of the FGCM, the Defending Officer and 
the Interpreter, who were all duly sworn in. The charge 
was formally framed to which the Convict pleaded guilty. 
The plea was altered to not guilty. The prosecution 
witnesses were examined on Oath and subjected to 
CPs.842/2016, etc. 
101 
cross-examination and an opportunity was given to 
produce evidence in his defence, which was declined. 
The Convict was allowed to make a statement, which 
was so recorded and the Convict again admitted his 
guilt. The sentence has been confirmed in accordance 
with the law.  
162.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, even otherwise, irregularity if 
any, stood cured in view of Rule 132 of the Pakistan 
Army Rules Act, 1954, and furthermore, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the High Court, as has 
been stated above.  
163.  
It is now settled law that in exercise of the 
jurisdiction invoked neither the learned High Court nor 
this Court can sit in appeal over the conclusion drawn 
by the FGCM or analyze the evidence produced before it. 
However, we have scanned the record in the instant 
case. The Convict pleaded guilty to the charges framed 
against him. The plea was altered to not guilty in 
accordance with the law. The evidence, inter alia, 
CPs.842/2016, etc. 
102 
included a judicial confession, which was proved by the 
learned Judicial Magistrate, who recorded the same and 
appeared as a witness before the FGCM. The Convict 
never retracted from his confession. The Convict in his 
statement before the FGCM yet again admitted his guilt. 
In the circumstances, it cannot be said that the 
conclusions drawn by the FGCM are based on no 
evidence or insufficient evidence or are otherwise wholly 
unreasonable and improbable. The learned counsel for 
the Petitioner has not been able to persuade us that the 
conclusion drawn, conviction recorded and sentence 
passed are not as countenanced by the law. Hence, no 
case of malice in law has been made out.  
164.  
The examination of the record reveals that the 
FGCM was constituted and convened in accordance with 
the provisions of the Pakistan Army Act and the Rules 
framed thereunder. No violation of the law, in this 
behalf, was pointed out at the bar. Hence, the conviction 
and sentence do not appear to be coram non judice. 
165.  
In short, it appears from the record that the 
Convict, being subject to the Pakistan Army Act was 
tried for the offences triable by the FGCM, which was 
convened and constituted in accordance with the law. 
CPs.842/2016, etc. 
103 
No personal bias of any Member of the FGCM against 
the Convict has been established nor that the 
proceedings conducted were mala fide or conducted in 
bad faith for a collateral purpose. It does not appear to 
be a case of no evidence or insufficient evidence nor the 
conclusions 
drawn 
blatantly 
unreasonable 
or 
improbable. No illegality in the conduct of the trial 
exists. The Law and the Rules, more particularly, those 
protecting the rights of the accused were adhered to. No 
case of malice in law or coram non judice has been made 
out. 
166.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
CPs.842/2016, etc. 
104 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
167.  
In this view of the matter, we are not 
persuaded to interfere with the impugned Order dated 
09.12.2015 of the learned Peshawar High Court 
dismissing the Constitutional Petition i.e. Writ Petition 
No.4019-P of 2015, challenging the conviction and 
sentence of the Convict.    
168.  
The subject matter of Civil Petition for Leave to 
Appeal No.32 of 2016, is the conviction and sentence 
awarded to a Civilian namely Jameel ur Rehman 
(Convict) son of Sher Rehman by a FGCM, convened and 
constituted under the Pakistan Army Act, 1952, as 
amended by the Pakistan Army (Amendment) Act, 2015. 
Jameel ur Rehman was accused of the offences of being 
a Member of a known religiously motivated terrorist 
organization and attacking the Armed Forces of 
Pakistan, causing death and injuries to Army personnel. 
He was also accused of kidnapping the officials of the 
Law Enforcement Agencies and further causing death 
and injuries to civilians and abetting in use of explosive.  
169.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
CPs.842/2016, etc. 
105 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of Section 8(3) of the Pakistan 
Army Act, therefore, the offences were liable to be tried 
by the FGCM in view of Section 59 of the Pakistan Army 
Act, 1952. The offences for which the accused was 
charged fell within the purview of Section 2(1)(d)(iii) of 
the Pakistan Army Act, 1952, hence, in view of Section 
2(1), the Convict by operation of law was subject to the 
Pakistan Army Act. In the circumstances, the FGCM had 
the jurisdiction to try the Convict for the offences of 
which he was accused that too irrespective of the point 
of time when the offence was committed. It has also 
been noticed that the Convict did not object to his trial 
by the FGCM, as is evident from the record of the 
proceedings. In the circumstances, the conviction and 
sentence awarded by the FGCM do not suffer from want 
of inherent jurisdiction.  
170.  
The contention of the learned counsel for the 
Petitioner regarding the alleged lack of full access to the 
record is also misconceived as such access was granted 
to the learned counsel for the Petitioner in terms of the 
specific Order passed by this Court. It has also been 
noticed that no application in terms of Rule 130 of the 
CPs.842/2016, etc. 
106 
Pakistan Army Act Rules, was ever filed to the 
Competent Authority for the supply of copies of the 
proceedings of the FGCM 1954 at any point of time, not 
even when the matter was pending before the learned 
High Court or before this Court.  
171.  
The examination of the record reveals that the 
FGCM was constituted and convened in accordance with 
the provisions of the Pakistan Army Act and the Rules 
framed thereunder, hence, the conviction and sentence 
do not appear to be coram non judice. 
172.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
Members of the FGCM or any of them had a personal 
bias against the Convict or the proceedings were taken 
in bad faith for a collateral purpose. The record reveals 
that the Convict was given an opportunity to object to 
the Members of the FGCM but he did not raise any such 
objection. In the circumstances, no case for mala fides 
of fact has been made out warranting interference by the 
learned High Court or by this Court.  
173.  
The learned counsel for the Petitioner had 
further argued that the Convict was not defended by a 
Civil Defence Counsel of his own choice before the 
CPs.842/2016, etc. 
107 
FGCM. In this behalf, reference was made to Article 
10(2) of the Constitution. The Convict was tried under 
the Pakistan Army Act, 1952, as amended by the 
Pakistan Army (Amendment) Act, 2015, which as per the 
judgment of this Court, reported as District Bar 
Association, Rawalpindi and others (supra), was validly 
and effectively incorporated in the First Schedule of the 
Constitution, hence, in view of the Article 8(3) of the 
Constitution, the provisions of the Pakistan Army Act, 
1952, as amended by the Pakistan Army (Amendment) 
Act, 2015, are immune from challenge on the ground of 
being in violation of the Fundamental Rights, including 
those guaranteed by Articles 10 and 10-A. Furthermore, 
the record reveals that the Convict did not seek to be 
defended by a Civil Defence Counsel, therefore, a 
Defending Officer was appointed in accordance with 
Rule 81 of the Pakistan Army Act Rules, 1954. Such a 
course of action is in consonance with the law, as has 
been held by this Court in the case of Muhammad 
Mushtaq and another (Supra).  
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict too are of little 
significance and do not vitiate the trial by the FGCM, as 
CPs.842/2016, etc. 
108 
has been held by this Court in the judgment, reported 
as Mrs. Shahida Zahir Abbasi and 4 others (supra). 
174.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore Section 91 of the Pakistan 
Army Act, was not applicable, as a consequence 
whereof, the period between the date of occurrence and 
the date of trial has no material effect. The examination 
of the record of the FGCM reveals that all the procedural 
requirements, more particularly, the Rules that ensure a 
fair trial and preclude prejudice to the accused were 
complied with. Summary of evidence had been taken 
and was laid before the FGCM, as is apparent from the 
record of the proceedings thereof. The nature of the 
charge was explained to him. An Interpreter was also 
appointed. The Convict chose not to engage a Civil 
Defence Counsel, hence, a Defending Officer was 
appointed. He was granted an opportunity to object to 
the Members of the FGCM, the Defending Officer and 
the Interpreter, who were all duly sworn in. The charge 
was formally framed to which the Convict pleaded guilty, 
which was altered to not guilty. The prosecution 
witnesses were examined on Oath and subjected to 
CPs.842/2016, etc. 
109 
cross-examination and an opportunity was given to 
produce evidence in his defence, which was declined. 
The Convict was allowed to make a statement, which 
was so recorded and the Convict again admitted his 
guilt. The sentence has been confirmed in accordance 
with the law.  
175.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, yet, even otherwise, irregularity 
if any, stood cured in view of Rule 132 of the Pakistan 
Army Act Rules, 1954 and, furthermore, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the High Court, as has 
been stated above.  
176.  
It is now settled law that in exercise of its 
jurisdiction in the instant case neither the learned High 
Court nor this Court can sit in appeal over the 
conclusion drawn by the FGCM or analyze the evidence 
produced before it. However, we have scanned the 
record of evidence produced and proceedings conducted 
by the FGCM. The Convict pleaded guilty to the charges 
framed against him, which was altered to not guilty in 
CPs.842/2016, etc. 
110 
accordance with the law. The evidence, inter alia, 
included a judicial confession, which was proved by the 
learned Judicial Magistrate, who recorded the same and 
appeared as a witness before the FGCM. The Convict 
never retracted from his confession. The Convict on his 
own in his statement before the FGCM yet again 
admitted his guilt. In the circumstances, it cannot be 
said that the conclusions drawn by the FGCM are based 
on no evidence or insufficient evidence or are otherwise 
unreasonable and improbable. The learned counsel for 
the Petitioner has not been able to persuade us that the 
conclusion drawn, conviction recorded and sentence 
passed are not as countenanced by law. Hence, no case 
of malice in law has been made out.  
177.  
In short, it appears from the record that the 
Convict, being subject to the Pakistan Army Act was 
tried for the offences triable by the FGCM, which 
convened and constituted in accordance with the law. 
No personal bias by any Member of the FGCM against 
the Convict has been established nor that the 
proceedings conducted were mala fide or conducted in 
bad faith for a collateral purpose. It does not appear to 
be a case of no evidence or insufficient evidence. No 
CPs.842/2016, etc. 
111 
illegality in the conduct of the trial exists. The Law and 
the Rules, more particularly, those protecting the rights 
of the accused were adhered to.  
178.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
179.  
In this view of the matter, we are not 
persuaded to interfere with the impugned Order of the 
learned 
Peshawar 
High 
Court 
dated 
09.12.2015, 
dismissing the Constitutional Petition i.e. Writ Petition 
(HCP) No.3878-P of 2015, challenging the conviction and 
sentence of the Convict.     
CPs.842/2016, etc. 
112 
180.  
In Civil Petition for Leave to Appeal No.211 of 
2016, a Civilian Aslam Khan (Convict) son of Rozi Khan 
was convicted and sentenced by a FGCM convened and 
constituted under the Pakistan Army Act, 1952, as 
amended by the Pakistan Army (Amendment) Act, 2015, 
for the offences of being a Member of a known religiously 
motivated 
terrorist 
organization 
and 
attacking, 
alongwith others, the officials of the Law Enforcement 
Agencies and causing the death and injuries to them. He 
was separately accused of attacking and causing the 
death and injuries to civilians. The Convict was charged 
with six separate offences. He pleaded guilty to all of 
such charges. However, such pleas were altered to not 
guilty by operation of the law. After recording of 
evidence, the Convict was found not guilty in respect of 
two of such charges, both pertaining to causing the 
death and injuries to civilians. However, he was found 
guilty of the remaining four charges.  
181.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of Section 8(3), therefore, the 
offences were liable to be tried by the FGCM in view of 
CPs.842/2016, etc. 
113 
Section 59 of the Pakistan Army Act, 1952. The offences 
for which the accused was charged, fell within the 
purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 
1952, hence, in view of Section 2(1), the Convict by 
operation of law was subject to the Pakistan Army Act. 
In the circumstances, the FGCM had the jurisdiction to 
try the Convict for the offences of which he was accused 
that too irrespective of the point of time the offence was 
committed. It has also been noticed that the Convict did 
not object to his trial by the FGCM, as is evident from 
the record of the proceedings. In the circumstances, the 
conviction and sentence awarded by the FGCM do not 
suffer from want of inherent jurisdiction.  
182.  
The contention of the learned counsel for the 
Petitioner regarding the alleged lack of full access to the 
record is also misconceived as such access was given in 
terms of a specific Order passed by this Court. It has 
also been noticed that no application in terms of Rule 
130 of the Pakistan Army Act Rules, 1954, was ever 
made to the Competent Authority for the supply of 
copies of the proceedings of the FGCM at any point of 
time, not even when the matter was pending before the 
learned High Court or before this Court.  
CPs.842/2016, etc. 
114 
183.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
Members of the FGCM or any of them had a personal 
bias against the Convict or the proceedings were taken 
in bad faith for a collateral purpose. The record reveals 
that the Convict was given an opportunity to object to 
the Members of the FGCM but he did not raise any such 
objection. In the circumstances, no case for mala fides 
of fact has been made out warranting interference by the 
learned High Court or by this Court.  
184.  
The learned counsel for the Petitioner had 
argued that the Convict was not defended by a Civil 
Defence Counsel of his own choice before the FGCM. In 
this behalf, reference was made to the Article 10(2) of 
the Constitution. The Convict was tried under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
Army (Amendment) Act, 2015, which as per the 
judgment of this Court, reported as District Bar 
Association, Rawalpindi and others (supra) was validly 
and effectively incorporated in the First Schedule of the 
Constitution, hence, the provisions of the Pakistan Army 
Act, 
1952, 
as 
amended 
by 
the 
Pakistan Army 
(Amendment) Act, 2015, in view of the Article 8(3) of the 
CPs.842/2016, etc. 
115 
Constitution, are immune from challenge on the ground 
of being in violation of the Fundamental Rights, 
including those guaranteed by Articles 10 and 10-A. 
Furthermore, the record reveals that the Convict did not 
seek to be defended by a Civil Defence Counsel, 
therefore, a Defending Officer was appointed in 
accordance with Rule 81 of the Pakistan Army Act 
Rules, 1954. Such a course of action is in consonance 
with the law, as has been held by this Court in the case 
of Muhammad Mushtaq and another (supra).  
185.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore, Section 91 of the Pakistan 
Army Act, was not applicable, as a consequence 
whereof, the period between the date of the occurrence 
and the date of the trial has no material effect. The 
examination of the record of the FGCM reveals that all 
the procedural requirements, more particularly, the 
Rules that ensure a fair trial and preclude prejudice to 
the accused were complied with. Summary of evidence 
had been taken and was laid before the FGCM, as is 
apparent from the record of the proceedings thereof. The 
nature of the charge was explained to him. An 
CPs.842/2016, etc. 
116 
interpreter was also appointed. The Convict chose not to 
engage a Civil Defence Counsel, hence, a Defending 
Officer was appointed. He was granted an opportunity to 
object to the Members of the FGCM, the Defending 
Officer as well as the Interpreter, who were all duly 
sworn in. The charge was formally framed to which the 
Convict pleaded guilty. Such plea was altered to not 
guilty. The prosecution witnesses were examined on 
Oath and subjected to cross-examination and an 
opportunity was granted to produce evidence in defence, 
which was declined.  The Convict was allowed to make a 
statement, which was so recorded and the Convict again 
admitted his guilt. The sentence has been confirmed in 
accordance with the law.  
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict too are of little 
significance and do not vitiate the trial by the FGCM, as 
has been held by this Court in the judgment, reported 
as Mrs. Shahida Zahir Abbasi and 4 others (supra). 
186.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, yet, even otherwise, irregularity 
CPs.842/2016, etc. 
117 
if any, stood cured in view of Rule 132 of the Pakistan 
Army Act Rules, 1954 and, even otherwise, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the High Court, as has 
been stated above.  
187.  
It is settled law that in exercise of the 
jurisdiction in the instant case neither the learned High 
Court nor this Court can sit in appeal over the 
conclusion drawn by the FGCM or analyze the evidence 
produced before it. However, we have scanned the 
record of the evidence and proceedings conducted by the 
FGCM. The Convict pleaded guilty to the charges framed 
against him, which was altered to not guilty in 
accordance with the law. The evidence, inter alia, 
included a judicial confession, which was proved by the 
learned Judicial Magistrate, who recorded the same and 
appeared as a witness before the FGCM. The Convict 
never retracted from his confession. The Convict on his 
own in his statement before the FGCM yet again 
admitted his guilt. In the circumstances, it cannot be 
said that the conclusions drawn by the FGCM are based 
on no evidence or insufficient evidence nor even 
otherwise, improbable and unreasonable. The learned 
CPs.842/2016, etc. 
118 
counsel for the Petitioner has not been able to persuade 
us that the conclusion drawn, conviction recorded and 
sentence passed are not as countenanced by law. Hence, 
no case of malice in law has been made out.  
188.  
The examination of the record reveals that the 
FGCM was constituted and convened in accordance with 
the provisions of the Pakistan Army Act and the Rules 
framed thereunder, hence, the conviction and sentence 
do not appear to be coram non judice. 
189.  
In short, it appears from the record that the 
Convict, being subject to the Pakistan Army Act was 
tried for the offences triable by the FGCM, which was 
convened and constituted in accordance with the law. 
No personal bias of any Member of the FGCM against 
the Convict has been established nor that the 
proceedings were mala fides or conducted in bad faith 
for a collateral purpose. It does not appear to be a case 
of no evidence or insufficient evidence nor the 
conclusions drawn blatantly unreasonable or wholly 
improbable. No illegality in the conduct of the trial 
exists. The Law and the Rules, more particularly, those 
protecting the rights of the accused were adhered to. No 
case of malice in law or coram non judice was made out. 
CPs.842/2016, etc. 
119 
190.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
191.  
In this view of the matter, we are not 
persuaded to interfere with the impugned Order dated 
23.12.2015 of the learned Peshawar High Court, 
dismissing the Constitutional Petition i.e. Writ Petition 
No.4433-P of 2015, challenging the conviction and 
sentence of the Convict.    
192.  
Civil Petition for Leave to Appeal No.278 of 
2016, arises from the conviction and sentence awarded 
to a Civilian Muhammad Ghauri (Convict) son of Javed 
CPs.842/2016, etc. 
120 
Iqbal by a FGCM, convened under the Pakistan Army 
Act, 
1952, 
as 
amended 
by 
the 
Pakistan Army 
(Amendment) Act, 2015. Muhammad Ghauri was 
accused of the offences of being a Member of a known 
religiously 
motivated 
terrorist 
organization, 
who, 
alongwith others, abetted in the use of explosives at a 
place of worship, causing the death and injuries to 
civilians. He was also accused of possession of arms, 
ammunitions and explosives. 
193.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of Section 8(3) of the Pakistan 
Army Act, therefore, the offences were liable to be tried 
by the FGCM in view of Section 59 of the Pakistan Army 
Act, 1952. The offences for which the accused was 
charged fell within the purview of Section 2(1)(d)(iii) of 
the Pakistan Army Act, 1952, hence, in view of Section 
2(1), the Convict by operation of law was subject to the 
Pakistan Army Act. In the circumstances, the FGCM had 
the jurisdiction to try the Convict for the offences of 
which he was accused that too irrespective of the point 
of time the offence was committed. It was also noticed 
CPs.842/2016, etc. 
121 
that the Convict did not object to his trial by the FGCM, 
as is evident from the record of the proceedings. In the 
circumstances, the conviction and sentence awarded by 
the FGCM do not suffer from want of inherent 
jurisdiction.  
194.  
The examination of the record reveals that the 
FGCM was constituted and convened in accordance with 
the provisions of the Pakistan Army Act and the Rules 
framed thereunder, hence, the conviction and sentence 
do not appear to be coram non judice. 
195.  
The contention of the learned counsel for the 
Petitioner regarding alleged lack of full access to the 
record is also misconceived as such access was given in 
the instant case too in terms of a specific Order passed 
by this Court. It has also been noticed that no 
application in terms of Rule 130 of the Pakistan Army 
Act Rules, 1954, was ever made to the Competent 
Authority for the supply of copies of the proceedings of 
the FGCM at any point of time, not even when the 
matter was pending before the learned High Court or 
before this Court.  
196.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
CPs.842/2016, etc. 
122 
Members of the FGCM or any of them had a personal 
bias against the Convict or the proceedings were 
conducted in bad faith for a collateral purpose. The 
record reveals that the Convict was given an opportunity 
to object to the Members of the FGCM but he did not 
raise any such objection. In the circumstances, no case 
for mala fides of fact has been made out warranting 
interference by the learned High Court or by this Court.  
197.  
The learned counsel for the Petitioner next 
contended that the Convict was not defended by a Civil 
Defence Counsel of his own choice before the FGCM. In 
this behalf, reference was made to Article 10(2) of the 
Constitution. The Convict was tried under the Pakistan 
Army Act, 1952, as amended by the Pakistan Army 
(Amendment) Act, 2015, which as per the judgment of 
this Court, reported as District Bar Association, 
Rawalpindi 
and 
others 
(supra), 
was 
validly and 
effectively incorporated in the First Schedule of the 
Constitution, hence, in view of Article 8(3) of the 
Constitution, the provisions of the Pakistan Army Act, 
1952, as amended by the Pakistan Army (Amendment) 
Act, 2015, are immune from challenge on the ground of 
being in violation of the Fundamental Rights, included 
CPs.842/2016, etc. 
123 
those guaranteed by Articles 10 and 10-A. Furthermore, 
the record reveals that the Convict did not seek to be 
defended by a Civil Defence Counsel, therefore, a 
Defending Officer was appointed in accordance with 
Rule 81 of the Pakistan Army Act Rules, 1954. Such a 
course of action is in consonance with the law, as has 
been held by this Court in the case of Muhammad 
Mushtaq and another (supra).  
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict are of little 
consequence and do not vitiate the trial by the FGCM, 
as has been held by this Court in the judgment, 
reported as Mrs. Shahida Zahir Abbasi and 4 others 
(supra). 
198.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore, Section 91 of the Pakistan 
Army Act, was not applicable, as a consequence 
whereof, the period of time between the occurrence and 
the trial has no material effect.  
199.  
The examination of the record of the FGCM 
reveals that all the procedural requirements, more 
particularly, the Rules that ensure a fair trial and 
CPs.842/2016, etc. 
124 
preclude prejudice to the accused were complied with. 
Summary of evidence had been taken and was laid 
before the FGCM, as is apparent from the record of the 
proceedings thereof. The nature of the charge was 
explained to him. An Interpreter was also appointed. The 
Convict chose not to engage a Civil Defence Counsel 
thus a Defending Officer was appointed. He was granted 
an opportunity to object to the Members of the FGCM, 
the Defending Officer and the Interpreter, who were all 
duly sworn in. The charge was formally framed to which 
the Convict pleaded guilty. Such plea was altered to not 
guilty. The prosecution witnesses were examined on 
Oath and subjected to cross-examination and an 
opportunity was given to produce evidence in defence, 
which was declined. The Convict was allowed to make a 
statement, which was so recorded and the Convict again 
admitted his guilt. The sentence has been confirmed in 
accordance with the law.  
200.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, yet, even otherwise, irregularity 
if any, stood cured in view of Rule 132 of the Pakistan 
CPs.842/2016, etc. 
125 
Army Rules Act, 1954 and, even otherwise, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the High Court, as has 
been stated above.  
201.  
It is well settled law that while exercising the 
jurisdiction of Judicial Review in such like cases neither 
the learned High Court nor this Court can sit in appeal 
over the conclusion drawn by the FGCM or analyze the 
evidence produced before it. However, we have scanned 
the record in the instant case. The Convict pleaded 
guilty to the charges framed against him, which was 
altered to not guilty in accordance with law. The 
evidence, inter alia, included a judicial confession, which 
was proved by the learned Judicial Magistrate, who 
recorded the same while appearing as witness before the 
FGCM. The Convict never retracted from his confession. 
The Convict, on his own, in his statement before the 
FGCM, 
yet, 
again 
admitted 
his 
guilt. 
In 
the 
circumstances, it cannot be said that the conclusions 
drawn by the FGCM are based on no evidence or 
insufficient evidence or are otherwise, improbable or 
unreasonable. The learned counsel for the Petitioner has 
not been able to persuade us that the conclusion drawn, 
CPs.842/2016, etc. 
126 
conviction recorded and sentence passed are not as 
countenanced by law. Hence, no case of malice in law 
has been made out.  
202.  
In short, it appears from the record that the 
Convict, being subject to the Pakistan Army Act was 
tried for the offences triable by the FGCM, which was 
convened and constituted in accordance with the law. 
No personal bias of any Member of the FGCM against 
the Convict has been established nor that the 
proceedings were mala fide or conducted in bad faith for 
a collateral purpose. It does not appear to be a case of 
no evidence or insufficient evidence nor the conclusions 
drawn are blatantly unreasonable or wholly improbable. 
No illegality in the conduct of the trial exists. The Law 
and the Rules, more particularly, those protecting the 
rights of the accused were adhered to. No case of malice 
in law or coram non judice was made out. 
203.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
CPs.842/2016, etc. 
127 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
204.  
In this view of the matter, we are not 
persuaded to interfere with the impugned Order of the 
learned Lahore High Court, Rawalpindi Bench, dated 
27.01.2016, dismissing the Constitutional Petition i.e. 
Writ Petition No.197 of 2016, challenging the conviction 
and sentence of the Convict.   
205.  
Civil Petition for Leave to Appeal No.417 of 
2016, arises from the conviction and sentence awarded 
to a Civilian Tahir (Convict) son of Mir Shah Jahan by a 
FGCM, convened under the Pakistan Army Act, 1952, as 
amended by the Pakistan Army (Amendment) Act, 2015. 
The said Tahir was accused of the offences of being a 
Member of a known religiously motivated terrorist 
organization, who, alongwith others, attacked the 
Frontier Constabulary, causing the death and injuries to 
CPs.842/2016, etc. 
128 
the personnel of the said Law Enforcement Agency. 
Tahir was also accused of attacking, alongwith others, 
the prison at Bannu. He was further charged of 
attacking, alongwith others, the Frontier Constabulary 
Fort Jani Khel. 
206.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of sub-section (3) of Section 8 of 
the Pakistan Army Act, therefore, the offences were 
liable to be tried by the FGCM in view of Section 59 of 
the Pakistan Army Act, 1952. The offences for which the 
accused was charged fell within the purview of Section 
2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view 
of Section 2(1), the Convict by operation of law was 
subject to the Pakistan Army Act. In the circumstances, 
the FGCM had the jurisdiction to try the Convict for the 
offences of which he was accused that too irrespective of 
the point of time when the offence was committed. It has 
also been noticed that the Convict did not object to his 
trial by the FGCM, as is evident from the record of the 
proceedings. In the circumstances, the conviction and 
CPs.842/2016, etc. 
129 
sentence awarded by the FGCM do not suffer from want 
of inherent jurisdiction.  
207.  
The contention of the learned counsel for the 
Petitioner regarding alleged lack of full access to the 
record is also misconceived as such access was given in 
terms of a specific Order passed by this Court. It has 
also been noticed that no application in terms of Rule 
130 of the Pakistan Army Act Rules, 1954, was ever 
made to the Competent Authority for the supply of 
copies of the proceedings of the FGCM at any point of 
time, not even when the matter was pending before the 
learned High Court or before this Court.  
208.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
Members of the FGCM or any of them had a personal 
bias against the Convict or the proceedings were taken 
in bad faith for a collateral purpose. The record reveals 
that the Convict was given an opportunity to object to 
the Members of the FGCM but he did not raise any such 
objection. In the circumstances, no case for mala fides 
of fact has been made out warranting interference by the 
learned High Court or by this Court.  
CPs.842/2016, etc. 
130 
209.  
The learned counsel for the Petitioner had 
argued that the Convict was not defended by a Civil 
Defence Counsel of his own choice before the FGCM. In 
this behalf, reference was made to the Article 10(2) of 
the Constitution. The Convict was tried under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
Army (Amendment) Act, 2015, which as per the 
judgment of this Court, reported as District Bar 
Association, Rawalpindi and others (supra) was validly 
and effectively incorporated in the First Schedule of the 
Constitution, hence, the provisions of the Pakistan Army 
Act, 
1952, 
as 
amended 
by 
the 
Pakistan Army 
(Amendment) Act, 2015, in view of Article 8(3) of the 
Constitution, are immune from challenge on the ground 
of being in violation of the Fundamental Rights, 
included those guaranteed by Articles 10 and 10-A. 
Furthermore, the record reveals that the Convict did not 
seek to be defended by a Civil Defence Counsel, 
therefore, a Defending Officer was appointed in 
accordance with Rule 81 of the Pakistan Army Act 
Rules, 1954. Such a course of action is in consonance 
with the law, as has been held by this Court in the case 
of Muhammad Mushtaq and another (supra).  
CPs.842/2016, etc. 
131 
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict too are of little 
significance and do not vitiate the trial by the FGCM, as 
has been held by this Court in the judgment, reported 
as Mrs. Shahida Zahir Abbasi and 4 others (supra). 
210.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore, Section 91 of the Pakistan 
Army Act, was not applicable, as a consequence 
whereof, the period between the date of occurrence and 
the date of trial has no material effect. The examination 
of the record of the FGCM reveals that all the procedural 
requirements, more particularly, the Rules that ensure a 
fair trial and preclude prejudice to the accused were 
complied with. Summary of evidence had been taken 
and was laid before the FGCM, as is apparent from the 
record of the proceedings thereof. The nature of the 
charge was explained to him. An Interpreter was also 
appointed. The Convict chose not to engage a Civil 
Defence Counsel, hence, a Defending Officer was 
appointed. He was granted an opportunity to object to 
the Members of the FGCM, the Defending Officer and 
the Interpreter, who were all duly sworn in. The charge 
CPs.842/2016, etc. 
132 
was formally framed to which the Convict pleaded guilty. 
Such plea altered to not guilty. The prosecution 
witnesses were examined on Oath and subjected to 
cross-examination and an opportunity was given to 
produce evidence in his defence, which was declined.  
The Convict was allowed to make a statement, which 
was so recorded and the Convict again admitted his 
guilt. The sentence has been confirmed in accordance 
with the law.  
211.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, yet, even otherwise, irregularity 
if any, stood cured in view of Rule 132 of the Pakistan 
Army Rules Act, 1954, and furthermore, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the High Court, as has 
been stated above.  
212.  
It is settled law that in exercise of the 
jurisdiction in the instant case neither the learned High 
Court nor this Court can sit in appeal over the 
conclusion drawn by the FGCM or analyze the evidence 
produced before it. However, we have scanned the 
CPs.842/2016, etc. 
133 
record of evidence produced and proceedings conducted 
by the FGCM. The Convict pleaded guilty to the charges 
framed against him, which was altered to not guilty in 
accordance with the law. The evidence, inter alia, 
included a judicial confession, which was proved by the 
learned Judicial Magistrate, who recorded the same and 
appeared as a witness before the FGCM. The Convict 
never retracted from his confession. The Convict, on his 
own, in his statement before the FGCM, yet, again 
admitted his guilt. In the circumstances, it cannot be 
said that the conclusions drawn by the FGCM are based 
on no evidence or insufficient evidence or even otherwise 
improbable and unreasonable. The learned counsel for 
the Petitioner has not been able to persuade us that the 
conclusion drawn, conviction recorded and sentence 
passed are not as countenanced by law. Hence, no case 
of malice in law has been made out.  
213.  
The examination of the record reveals that the 
FGCM was constituted and convened in accordance with 
the provisions of the Pakistan Army Act and the Rules 
framed thereunder, hence, the conviction and sentence 
do not appear to be coram non judice. 
CPs.842/2016, etc. 
134 
214.  
In short, it appears from the record that the 
Convict, being subject to the Pakistan Army Act was 
tried for the offences triable by the FGCM, which was 
convened and constituted in accordance with the law. 
No personal bias of any Member of the FGCM against 
the Convict has been established nor that the 
proceedings were mala fide or conducted in bad faith for 
a collateral purpose. It does not appear to be a case of 
no evidence or insufficient evidence nor the conclusions 
drawn are blatantly unreasonable or wholly improbable. 
No illegality in the conduct of the trial exists. The Law 
and the Rules, more particularly, those protecting the 
rights of the accused were adhered to. No case of malice 
in law or coram non judice was made out. 
215.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
CPs.842/2016, etc. 
135 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
216.  
In this view of the matter, we are not 
persuaded to interfere with the impugned Order of the 
learned 
Peshawar 
High 
Court 
dated 
19.01.2016, 
dismissing the Constitutional Petition i.e. Writ Petition 
No.133-P of 2016, challenging the conviction and 
sentence of the Convict.    
217.  
In Civil Petition for Leave to Appeal No.1263 of 
2016, a Civilian Fazal-e-Ghaffar alias Abdul Afazal Qari 
(Convict) son of Shehzada was convicted and sentenced 
by a FGCM convened and constituted under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
Army (Amendment) Act, 2015, for the offences of being a 
Member of a known religiously motivated terrorist 
organization and attacking, alongwith others, the Armed 
Forces of Pakistan, causing the death and injuries to 
Army personnel. Fazal-e-Ghaffar alias Abdul Afazal Qari 
was also charged of planting explosive devices at the 
roadside to kill Army personnel and also of having been 
CPs.842/2016, etc. 
136 
found in possession of a suicide jacket and explosive 
material.  
218.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of sub-section (3) of Section 8 of 
the Pakistan Army Act, therefore, the offences were 
liable to be tried by the FGCM in view of Section 59 of 
the Pakistan Army Act, 1952. The offences for which the 
accused was charged fell within the purview of Section 
2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view 
of Section 2(1), the Convict, by operation of law was 
subject to the Pakistan Army Act. In the circumstances, 
the FGCM had the jurisdiction to try the Convict for the 
offences of which he was accused that too irrespective of 
the point of time when the offence was committed. It 
was also noticed that the Convict did not object to his 
trial by the FGCM, as is evident from the record of its 
proceedings. In the circumstances, the conviction and 
sentence awarded by the FGCM do not suffer from want 
of inherent jurisdiction.  
219.  
The contention of the learned counsel for the 
Petitioner regarding alleged lack of full access to the 
CPs.842/2016, etc. 
137 
record is also misconceived as such access was given in 
the instant case too, in terms of the specific Order 
passed by this Court. It has also been noticed that no 
application in terms of Rule 130 of the Pakistan Army 
Act rules, 1954, was ever made to the Competent 
Authority for the supply of copies of the proceedings of 
the FGCM at any point of time nor even when the matter 
was pending before the learned High Court or before this 
Court.  
220.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
Members of the FGCM or any of them had a personal 
bias against the Convict or the proceedings were 
conducted in bad faith for a collateral purpose. The 
record reveals that the Convict was given an opportunity 
to object to the Members of the FGCM but he did not 
raise any such objection. In the circumstances, no case 
for mala fide of fact has been made out warranting 
interference by the learned High Court or by this Court.  
221.  
The learned counsel for the Petitioner had 
contended that the Convict was not defended by a Civil 
Defence Counsel of his own choice before the FGCM. In 
this behalf, reference was made to Article 10(2) of the 
CPs.842/2016, etc. 
138 
Constitution. The Convict was tried under the Pakistan 
Army Act, 1952, as amended by the Pakistan Army 
(Amendment) Act, 2015, which as per the judgment of 
this Court, reported as District Bar Association, 
Rawalpindi and others (supra) was validly and effectively 
incorporated in the First Schedule of the Constitution, 
hence, in view of Article 8(3) of the Constitution the 
provisions of the Pakistan Army Act, 1952, as amended 
by the Pakistan Army (Amendment) Act, 2015, are 
immune from challenge on the ground of being in 
violation of the Fundamental Rights, including those 
guaranteed by Articles 10 and 10-A. Furthermore, the 
record reveals that the Convict did not claim to be 
defended by a Civil Defence Counsel, therefore, a 
Defending Officer was appointed in accordance with 
Rule 81 of the Pakistan Army Act Rules, 1954. Such a 
course of action is in consonance with the law, as has 
been held by this Court in the case of Muhammad 
Mushtaq and another (supra).  
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict are of little 
consequence and do not vitiate the trial by the FGCM, 
as has been held by this Court in the judgment, 
CPs.842/2016, etc. 
139 
reported as Mrs. Shahida Zahir Abbasi and 4 others 
(supra). 
222.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore, Section 91 of the Pakistan 
Army Act, was not applicable, as a consequence 
whereof, the period of time between the date of 
occurrence and the date of the trial has no material 
effect. The examination of the record of the FGCM 
reveals that all the procedural requirements, more 
particularly, the Rules that ensure a fair trial and 
preclude prejudice to the accused were complied with. 
Summary of evidence had been taken and was laid 
before the FGCM, as is apparent from the record of the 
proceedings thereof. The nature of the charge was 
explained to him. An interpreter was also appointed. The 
Convict chose not to engage a Civil Defence Counsel, 
hence, a Defending Officer was appointed. He was 
granted an opportunity to object to the Members of the 
FGCM, the Defending Officer and the Interpreter, who 
were all sworn in as required by the law. The charge was 
formally framed to which the Convict pleaded guilty, 
which was altered to not guilty. The prosecution 
CPs.842/2016, etc. 
140 
witnesses were examined on Oath and subjected to 
cross-examination and an opportunity was given to 
produce evidence in his defence, which was declined.  
The Convict was allowed to make a statement, which 
was so recorded and the Convict again admitted his 
guilt. The sentence has been confirmed in accordance 
with the law.  
223.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, yet, even otherwise, irregularity 
if any, stood cured in view of Rule 132 of the Pakistan 
Army Rules Act, 1954 and, furthermore, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the High Court, as has 
been stated above.  
224.  
It is settled law that while exercising the power 
of Judicial Review of this nature neither the learned 
High Court nor this Court can sit in appeal over the 
conclusion drawn by the FGCM or analyze the evidence 
produced before it. However, we have examined the 
record in the instant case, the Convict pleaded guilty to 
the charges framed against him. This was altered to not 
CPs.842/2016, etc. 
141 
guilty in accordance with the law. The evidence, inter 
alia, included a judicial confession, which was proved by 
the learned Judicial Magistrate, who recorded the same 
and appeared as a witness before the FGCM. The 
Convict never retracted from his confession. The Convict 
on his own in his statement before the FGCM yet again 
admitted his guilt. In the circumstances, it cannot be 
said that the conclusions drawn by the FGCM are based 
on no evidence or insufficient evidence or are otherwise 
improbable or blatantly unreasonable. The learned 
counsel for the Petitioner has not been able to persuade 
us that the conclusion drawn, conviction recorded and 
sentence passed are not as countenanced by law. Hence, 
no case of malice in law has been made out.  
225.  
The examination of the record also reveals that 
the FGCM was constituted and convened in accordance 
with the provisions of the Pakistan Army Act and the 
Rules framed thereunder, hence, the conviction and 
sentence do not appear to be coram non judice. 
226.  
In short, it appears from the record that the 
Convict, being subject to the Pakistan Army Act was 
tried for the offences triable by the FGCM, which was 
convened and constituted in accordance with the law. 
CPs.842/2016, etc. 
142 
No personal bias of any Member of the FGCM against 
the Convict has been established nor that the 
proceedings were mala fide or conducted in bad faith for 
a collateral purpose. It does not appear to be a case of 
no evidence or insufficient evidence nor the conclusions 
drawn wholly unreasonable and improbable. No illegality 
in the conduct of the trial exists. The Law and the Rules, 
more particularly, those protecting the rights of the 
accused were adhered to.  
227.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
CPs.842/2016, etc. 
143 
228.  
In this view of the matter, we find ourselves 
unable to interfere with the impugned judgment dated 
12.04.2016 of the learned Peshawar High Court, 
dismissing the Constitutional Petition i.e. Writ Petition 
No.1048-P of 2016, challenging the conviction and 
sentence of the Convict.    
229.  
Civil Petition for Leave to Appeal No.1306 of 
2016, arises from the conviction and sentence awarded 
by a FGCM, convened under the Pakistan Army Act, 
1952, as amended by the Pakistan Army (Amendment) 
Act, 2015, to a Civilian Fateh Khan (Convict) son of 
Mukaram Khan who was charged with several counts of 
the commission of the offences of being a Member of a 
known religiously motivated terrorist organization, and 
attacked, alongwith others, the Armed Forces of 
Pakistan and thereby causing death and injuries to 
several Army personnel. He was also separately accused 
of attacking and causing the death and injuries to the 
officials of the Law Enforcement Agencies. He was also 
accused of causing death of civilians and health officials. 
The alleged offences were committed in the Khyber 
Agency.  
CPs.842/2016, etc. 
144 
230.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of sub-section (3) of Section 8 of 
the Pakistan Army Act, therefore, the offences were 
liable to be tried by the FGCM in view of Section 59 of 
the Pakistan Army Act, 1952. The offences for which the 
accused was charged fell within the purview of Section 
2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view 
of Section 2(1), the Convict by operation of law was 
subject to the Pakistan Army Act. In the circumstances, 
the FGCM had the jurisdiction to try the Convict for the 
offences of which he was accused that too irrespective of 
the point of time when the offence was committed. It has 
also been noticed that the Convict did not object to his 
trial by the FGCM, as is evident from the record of the 
proceedings. In the circumstances, the conviction and 
sentence awarded by the FGCM do not suffer from want 
of inherent jurisdiction.  
231.  
The contention of the learned counsel for the 
Petitioner regarding alleged lack of full access to the 
record is also misconceived as such access was given in 
terms of a specific Order passed by this Court. It has 
CPs.842/2016, etc. 
145 
also been noticed that no application in terms of Rule 
130 of the Pakistan Army Act Rules, 1954, was ever 
made to the Competent Authority for the supply of 
copies of the proceedings of the FGCM at any point of 
time, not even when the matter was pending before the 
learned High Court or before this Court.  
232.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
Members of the FGCM or any of them had a personal 
bias against the Convict or the proceedings were 
conducted in bad faith for a collateral purpose. The 
record reveals that the Convict was given an opportunity 
to object to the Members of the FGCM but he did not 
raise any such objection. In the circumstances, no case 
for mala fides of fact has been made out warranting 
interference by the learned High Court or by this Court.  
233.  
The learned counsel for the Petitioner had 
contended that the Convict was not defended by a Civil 
Defence Counsel of his own choice before the FGCM. In 
this behalf, reference was made to Article 10(2) of the 
Constitution. The Convict was tried under the Pakistan 
Army Act, 1952, as amended by the Pakistan Army 
(Amendment) Act, 2015, which as per the judgment of 
CPs.842/2016, etc. 
146 
this Court, reported as District Bar Association, 
Rawalpindi and others (supra) was validly and effectively 
incorporated in the First Schedule of the Constitution, 
hence, in view of Article 8(3) of the Constitution, the 
provisions of the Pakistan Army Act, 1952, as amended 
by the Pakistan Army (Amendment) Act, 2015, are 
immune from challenge on the ground of being in 
violation of the Fundamental Rights, including those 
guaranteed by Articles 10 and 10-A. Furthermore, the 
record reveals that the Convict did not seek to be 
defended by a Civil Defence Counsel, therefore, a 
Defending Officer was appointed in accordance with 
Rule 81 of the Pakistan Army Act Rules, 1954. Such a 
course of action is in consonance with the law, as has 
been held by this Court in the case of Muhammad 
Mushtaq and another (supra).  
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict are of little 
consequence and do not vitiate the trial by the FGCM, 
as has been held by this Court in the judgment, 
reported as Mrs. Shahida Zahir Abbasi and 4 others 
(supra). 
CPs.842/2016, etc. 
147 
234.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore, Section 91 of the Pakistan 
Army Act, was not applicable, as a consequence 
whereof, the period between the date of occurrence and 
the date of trial has no material effect. The examination 
of the record of the FGCM reveals that all the procedural 
requirements, more particularly, the Rules that ensure a 
fair trial and preclude prejudice to the accused were 
complied with. Summary of evidence had been taken 
and was laid before the FGCM, as is apparent from the 
record of the proceedings thereof. The nature of the 
charge was explained to him. An Interpreter was also 
appointed. The Convict chose not to engage a Civil 
Defence Counsel, hence, a Defending Officer was 
appointed. He was granted an opportunity to object to 
the Members of the FGCM, the Defending Officer and 
the Interpreter, who were all duly sworn in. The charge 
was formally framed to which the Convict pleaded guilty. 
Such plea was altered to not guilty. The prosecution 
witnesses were examined on Oath and subjected to 
cross-examination and an opportunity was granted to 
produce evidence in defence, which was declined. The 
CPs.842/2016, etc. 
148 
Convict was allowed to make a statement, which was so 
recorded and the Convict again admitted his guilt. The 
sentence has been confirmed in accordance with the 
law.  
235.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, yet, even otherwise, irregularity 
if any, stood cured in view of Rule 132 of the Pakistan 
Army Rules Act, 1954 and, even otherwise, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the High Court, as has 
been stated above.  
236.  
It is settled law that while exercising the 
powers of Judicial Review of this nature neither the 
learned High Court nor this Court can sit in appeal over 
the conclusion drawn by the FGCM or analyze the 
evidence produced before it. However, we have examined 
the record in the instant case, the Convict pleaded guilty 
to the charges framed against him. This was altered to 
not guilty in accordance with the law. The evidence, inter 
alia, included a judicial confession, which was proved by 
the learned Judicial Magistrate, who recorded the same 
CPs.842/2016, etc. 
149 
and appeared as a witness before the FGCM. The 
Convict never retracted from his confession. The 
Convict, on his own in his statement before the FGCM, 
yet, again admitted his guilt. In the circumstances, it 
cannot be said that the conclusions drawn by the FGCM 
are based on no evidence or insufficient evidence or are 
otherwise improbable or blatantly unreasonable. The 
learned counsel for the Petitioner has not been able to 
persuade us that the conclusion drawn, conviction 
recorded and sentence passed are not as countenanced 
by law. Hence, no case of malice in law has been made 
out.  
237.  
The examination of the record also reveals that 
the FGCM was constituted and convened in accordance 
with the provisions of the Pakistan Army Act and the 
Rules framed thereunder, hence, the conviction and 
sentence do not appear to be coram non judice. 
238.  
In short, it appears from the record that the 
Convict, being subject to the Pakistan Army Act was 
tried for the offences triable by the FGCM, which was 
convened and constituted in accordance with the law. 
No personal bias of any Member of the FGCM against 
the Convict has been established nor that the 
CPs.842/2016, etc. 
150 
proceedings were mala fides or conducted in bad faith 
for a collateral purpose. It does not appear to be a case 
of no evidence or insufficient evidence nor the 
conclusions 
drawn 
wholly 
unreasonable 
and 
improbable. No illegality in the conduct of the trial 
exists. The Law and the Rules, more particularly, those 
protecting the rights of the accused were adhered to. No 
case of malice in law or coram non judice was made out. 
239.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
CPs.842/2016, etc. 
151 
240.  
In this view of the matter, we find ourselves 
unable to interfere with the impugned judgment dated 
12.04.2016 of the learned Peshawar High Court, 
dismissing the Constitutional Petition i.e. Writ Petition 
No.1184-P of 2016, challenging the conviction and 
sentence of the Convict.     
241.  
Civil Petition for Leave to Appeal No.1335 of 
2016, arises out of conviction and sentence of a Civilian 
Taj Gul alias Javid (Convict) son of Sultan Zareen by a 
FGCM, convened and constituted under the Pakistan 
Army Act, 1952, as amended by the Pakistan Army 
(Amendment) Act, 2015. Taj Gul alias Javid was accused 
of the offences of being a Member of a known religiously 
motivated terrorist organization, who attacked and caused 
the death of the officials of the Law Enforcement Agencies 
and further for possession of arms and ammunitions.  
242.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of sub-section (3) of Section 8 of 
the Pakistan Army Act, therefore, the offences were 
liable to be tried by the FGCM in view of Section 59 of 
the Pakistan Army Act, 1952. The offences for which the 
accused was charged fell within the purview of Section 
CPs.842/2016, etc. 
152 
2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view 
of Section 2(1), the Convict by operation of law was 
subject to the Pakistan Army Act. In the circumstances, 
the FGCM had the jurisdiction to try the Convict for the 
offences of which he was accused that too irrespective of 
the point of time when the offence was committed. It 
was also noticed that the Convict did not object to his 
trial by the FGCM, as is evident from the record of the 
proceedings. In the circumstances, the conviction and 
sentence awarded by the FGCM do not suffer from want 
of inherent jurisdiction.  
243.  
The contention of the learned counsel for the 
Petitioner regarding alleged lack of full access to the 
record is also misconceived as such access was given in 
terms of the specific Order passed by this Court. It has 
also been noticed that no application in terms of Rule 
130 of the Pakistan Army Act Rules, 1954, was ever 
made to the Competent Authority for the supply of 
copies of the proceedings of the FGCM at any point of 
time, not even when the matter was pending before the 
learned High Court or before this Court.  
244.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
CPs.842/2016, etc. 
153 
Members of the FGCM or any of them had a personal 
bias against the Convict or the proceedings were 
conducted in bad faith for a collateral purpose. The 
record reveals that the Convict was given an opportunity 
to object to the Members of the FGCM but he did not 
raise any such objection. In the circumstances, no case 
for mala fides of fact has been made out warranting 
interference by the learned High Court or by this Court.  
245.  
The learned counsel for the Petitioner had 
contended that the Convict was not defended by a Civil 
Defence Counsel of his own choice before the FGCM. In 
this behalf, reference was made to the Article 10(2) of 
the Constitution. The Convict was tried under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
Army (Amendment) Act, 2015, which as per the 
judgment of this Court, reported as District Bar 
Association, Rawalpindi and others (supra) was validly 
and effectively incorporated in the First Schedule of the 
Constitution, hence, in view of the Article 8(3) of the 
Constitution, the provisions of the Pakistan Army Act, 
1952, as amended by the Pakistan Army (Amendment) 
Act, 2015, are immune from challenge on the ground of 
being in violation of the Fundamental Rights, including 
CPs.842/2016, etc. 
154 
those guaranteed by Articles 10 and 10-A. Furthermore, 
the record reveals that the Convict did not claim to be 
defended by a Civil Defence Counsel, therefore, a 
Defending Officer was appointed in accordance with 
Rule 81 of the Pakistan Army Act Rules, 1954. Such a 
course of action is in consonance with the law, as has 
been held by this Court in the case of Muhammad 
Mushtaq and another (supra).  
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict are of little 
consequence and do not vitiate the trial by the FGCM, 
as has been held by this Court in the judgment, 
reported as Mrs. Shahida Zahir Abbasi and 4 others 
(supra). 
246.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore, Section 91 of the Pakistan 
Army Act, was not applicable, as a consequence 
whereof, the period of time between the date of 
occurrence and the date of trial has no material effect. 
The examination of the record of the FGCM reveals that 
all the procedural requirements, more particularly, the 
Rules that ensure a fair trial and preclude prejudice to 
CPs.842/2016, etc. 
155 
the accused were complied with. Summary of evidence 
had been taken and was laid before the FGCM, as is 
apparent from the record of the proceedings thereof. The 
nature of the charge was explained to him. An 
interpreter was also appointed. The Convict chose not to 
engage a Civil Defence Counsel, hence, a Defending 
Officer was appointed. He was granted an opportunity to 
object to the Members of the FGCM, the Defending 
Officer and the Interpreter, who were all sworn in as 
required by the law. The charge was formally framed to 
which the Convict pleaded guilty, which was altered to 
not guilty. The prosecution witnesses were examined on 
Oath and subjected to cross-examination and an 
opportunity was given to produce evidence in his 
defence, which was declined. The Convict was allowed to 
make a statement, which was so recorded and the 
Convict again admitted his guilt. The sentence has been 
confirmed in accordance with the law.  
247.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, yet, even otherwise, irregularity 
if any, stood cured in view of Rule 132 of the Pakistan 
CPs.842/2016, etc. 
156 
Army Rules Act, 1954, and even otherwise, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the High Court, as has 
been stated above.  
248.  
It is now settled law that while exercising the 
powers of Judicial Review in such like cases neither the 
learned High Court nor this Court can sit in appeal over 
the conclusion drawn by the FGCM or analyze the 
evidence produced before it, in this behalf. However, we 
have examined the record in the instant case, the 
Convict pleaded guilty to the charges framed against 
him. This was altered to not guilty in accordance with 
the law. The evidence, inter alia, included a judicial 
confession, which was proved by the learned Judicial 
Magistrate, who recorded the same and appeared as a 
witness before the FGCM. The Convict never retracted 
from his confession. The Convict, on his own, in his 
statement before the FGCM, yet, again admitted his 
guilt. In the circumstances, it cannot be said that the 
conclusions drawn by the FGCM are based on no 
evidence or insufficient evidence or were otherwise 
improbable or blatantly unreasonable. The learned 
counsel for the Petitioner has not been able to persuade 
CPs.842/2016, etc. 
157 
us that the conclusion drawn, conviction recorded and 
sentence passed are not as countenanced by law. Hence, 
no case of malice in law has been made out.  
249.  
The examination of the record also reveals that 
the FGCM was constituted and convened in accordance 
with the provisions of the Pakistan Army Act and the 
Rules framed thereunder, hence, the conviction and 
sentence do not appear to be coram non judice. 
250.  
In short, it appears from the record that the 
Convict, being subject to Pakistan Army Act was tried 
for the offences triable by the FGCM, which was 
convened and constituted in accordance with the law. 
No personal bias of any Member of the FGCM against 
the Convict has been established nor that the 
proceedings were mala fides or conducted in bad faith 
for a collateral purpose. It does not appear to be a case 
of no evidence or insufficient evidence nor the 
conclusions drawn blatantly unreasonable or wholly 
improbable. No illegality in the conduct of the trial 
exists. The Law and the Rules, more particularly, those 
protecting the rights of the accused were adhered to. No 
case of malice in law or coram non judice was made out. 
CPs.842/2016, etc. 
158 
251.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
252.  
In this view of the matter, we find ourselves 
unable to interfere with the impugned judgment dated 
12.04.2015 of the learned Peshawar High Court, 
dismissing the Constitutional Petition i.e. Writ Petition 
No.1190-P of 2016, challenging the conviction and 
sentence of the Convict.    
253.  
In Civil Petition for Leave to Appeal No.1353 of 
2016, a Civilian Aksan Mahboob alias Khubab (Convict) 
son of Asghar Ali was convicted and sentenced by a 
CPs.842/2016, etc. 
159 
FGCM, convened and constituted under the Pakistan 
Army Act, 1952, as amended by the Pakistan Army 
(Amendment) Act, 2015, for the offences on several 
counts of being a Member of a known religiously 
motivated 
terrorist 
organization 
and 
attacking, 
alongwith others, the officials of the Law Enforcement 
Agencies, which resulted in death and injuries to the 
officials of the Law Enforcement Agencies and having 
possession of firearms, explosives and receiving funds 
for committing the aforesaid offences.   
254.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of sub-section (3) of Section 8 of 
the Pakistan Army Act, therefore, the offences were 
liable to be tried by the FGCM in view of Section 59 of 
the Pakistan Army Act, 1952. The offences for which the 
accused was charged fell within the purview of Section 
2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view 
of Section 2(1), the Convict by operation of the law was 
subject to the Pakistan Army Act. In the circumstances, 
the FGCM had the jurisdiction to try the Convict for the 
offences of which, he was accused that too irrespective 
CPs.842/2016, etc. 
160 
of the point of time when the offence was committed. It 
was also noticed that the Convict did not object to his 
trial by the FGCM, as is evident from the record of the 
proceedings. In the circumstances, the conviction and 
sentence awarded by the FGCM do not suffer from want 
of inherent jurisdiction.  
255.  
The contention of the learned counsel for the 
Petitioner regarding alleged lack of full access to the 
record is also misconceived as such access was given in 
terms of the specific Order passed by this Court. It has 
also been noticed that no application in terms of Rule 
130 of the Pakistan Army Act Rules, 1954, was ever 
made to the Competent Authority for the supply of 
copies of the proceedings of the FGCM at any point of 
time, not even when the matter was pending before the 
learned High Court or before this Court.  
256.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
Members of the FGCM or any of them had a personal 
bias against the Convict or the proceedings were 
conducted in bad faith for a collateral purpose. The 
record reveals that the Convict was given an opportunity 
to object to the Members of the FGCM but he did not 
CPs.842/2016, etc. 
161 
raise any such objection. In the circumstances, no case 
for mala fides of fact has been made out warranting 
interference by the learned High Court or by this Court.  
257.  
The learned counsel for the Petitioner had 
contended that the Convict was not defended by a Civil 
Defence Counsel of his own choice before the FGCM. In 
this behalf, reference was made to the Article 10(2) of 
the Constitution. The Convict was tried under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
Army (Amendment) Act, 2015, which as per the 
judgment of this Court, reported as District Bar 
Association, Rawalpindi and others (supra) was validly 
and effectively incorporated in the First Schedule of the 
Constitution, hence, in view of Article 8(3) of the 
Constitution, the provisions of the Pakistan Army Act, 
1952, as amended by the Pakistan Army (Amendment) 
Act, 2015, are immune from challenge on the ground of 
being in violation of the Fundamental Rights, including 
those guaranteed by Articles 10 and 10-A. Furthermore, 
the record reveals that the Convict did not claim to be 
defended by a Civil Defence Counsel, therefore, a 
Defending Officer was appointed in accordance with 
Rule 81 of the Pakistan Army Act Rules, 1954. Such a 
CPs.842/2016, etc. 
162 
course of action is in consonance with the law, as has 
been held by this Court in the case of Muhammad 
Mushtaq and another (supra).  
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict are of little 
consequence and do not vitiate the trial by the FGCM, 
as has been held by this Court in the judgment, 
reported as Mrs. Shahida Zahir Abbasi and 4 others 
(supra). 
258.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore, Section 91 of the Pakistan 
Army Act, was not applicable, as a consequence 
whereof, the period of time between the date of 
occurrence and the date of trial has no material effect. 
The examination of the record of the FGCM reveals that 
all the procedural requirements, more particularly, the 
Rules that ensure a fair trial and precluded prejudice to 
the accused were complied with. Summary of evidence 
had been taken and was laid before the FGCM, as is 
apparent from the record of the proceedings thereof. The 
nature of the charge was explained to him. An 
Interpreter was also appointed. The Convict chose not to 
CPs.842/2016, etc. 
163 
engage a Civil Defence Counsel, hence, a Defending 
Officer was appointed. He was granted an opportunity to 
object to the Members of the FGCM, the Defending 
Officer and the Interpreter, who were all sworn in as 
required by the law. The charge was formally framed to 
which the Convict pleaded guilty, which was altered to 
not guilty. The prosecution witnesses were examined on 
Oath and subjected to cross-examination and an 
opportunity was given to produce evidence in his 
defence, which was declined. The Convict was allowed to 
make a statement, which was so recorded and the 
Convict again admitted his guilt. The sentence has been 
confirmed in accordance with the law.  
259.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, yet, even otherwise, irregularity 
if any, stood cured in view of Rule 132 of the Pakistan 
Army Rules Act, 1954 and, furthermore, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the High Court, as has 
been stated above.  
CPs.842/2016, etc. 
164 
260.  
It is now settled law that while exercising the 
powers of Judicial Review in such like cases neither the 
learned High Court nor this Court can sit in appeal over 
the conclusion drawn by the FGCM or analyze the 
evidence produced before it, in this behalf. However, we 
have examined the record in the instant case, the 
Convict pleaded guilty to the charges framed against 
him. This was altered to not guilty in accordance with 
the law. The evidence, inter alia, included a judicial 
confession, which was proved by the learned Judicial 
Magistrate, who recorded the same and appeared as a 
witness before the FGCM. The Convict never retracted 
from his confession. The Convict, on his own, in his 
statement before the FGCM yet again admitted his guilt. 
In the circumstances, it cannot be said that the 
conclusions drawn by the FGCM are based on no 
evidence 
or 
insufficient 
evidence 
or 
otherwise 
improbable or blatantly unreasonable. The learned 
counsel for the Petitioner has not been able to persuade 
us that the conclusion drawn, conviction recorded and 
sentence passed are not as countenanced by law. Hence, 
no case of malice in law has been made out.  
CPs.842/2016, etc. 
165 
261.  
The examination of the record also reveals that 
the FGCM was constituted and convened in accordance 
with the provisions of the Pakistan Army Act and the 
Rules framed thereunder, hence, the conviction and 
sentence do not appear to be coram non judice. 
262.  
In short, it appears from the record that the 
Convict, being subject to the Pakistan Army Act was 
tried for the offences triable by the FGCM, which was 
convened and constituted in accordance with the law. 
No personal bias of any Member of the FGCM against 
the Convict has been established nor that the 
proceedings were mala fide or conducted in bad faith for 
a collateral purpose. It does not appear to be a case of 
no evidence or insufficient evidence nor the conclusions 
drawn blatantly unreasonable or wholly improbable. No 
illegality in the conduct of the trial exists. The Law and 
the Rules, more particularly, those protecting the rights 
of the accused were adhered to. No case of malice in law 
or coram non judice was made out. 
263.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
CPs.842/2016, etc. 
166 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
264.  
In this view of the matter, we find ourselves 
unable to interfere with the impugned Order dated 
19.01.2016 
of 
the 
learned 
Lahore 
High 
Court, 
Rawalpindi 
Bench, 
dismissing 
the 
Constitutional 
Petition i.e. Writ Petition No.117 of 2016, challenging the 
conviction and sentence of the Convict.    
265.  
Civil Petition for Leave to Appeal No.1503 of 
2016, is arising from the conviction and sentence 
awarded to Nasir Khan (Convict) son of Khan Afsar Khan 
by a FGCM, convened and constituted under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
Army (Amendment) Act, 2015. The said Nasir Khan was 
accused for the offences of being a Member of a known 
CPs.842/2016, etc. 
167 
religiously 
motivated 
terrorist 
organization, 
who, 
alongwith others, attacked the Armed Forces of 
Pakistan, causing the death and injuries to Army 
personnel and for possession of arms and explosives.  
266.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of sub-section (3) of Section 8 of 
the Pakistan Army Act, therefore, the offences were 
liable to be tried by the FGCM in view of Section 59 of 
the Pakistan Army Act, 1952. The offences for which the 
accused was charged fell within the purview of Section 
2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view 
of Section 2(1), the Convict by operation of law was 
subject to the Pakistan Army Act. In the circumstances, 
the FGCM had the jurisdiction to try the Convict for the 
offences of which, he was accused that too irrespective 
of the point of time when the offence was committed. It 
was also noticed that the Convict did not object to his 
trial by the FGCM, as is evident from the record of the 
proceedings. In the circumstances, the conviction and 
sentence awarded by the FGCM do not suffer from want 
of inherent jurisdiction.  
CPs.842/2016, etc. 
168 
267.  
The contention of the learned counsel for the 
Petitioner regarding alleged lack of full access to the 
record is also misconceived as such access was given in 
terms of a specific Order passed by this Court. It has 
also been noticed that no application in terms of Rule 
130 of the Pakistan Army Act Rules, 1954, was ever 
made to the Competent Authority for the supply of 
copies of the proceedings of the FGCM at any point of 
time, not even when the matter was pending before the 
learned High Court or before this Court.  
268.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
Members of the FGCM or any of them had a personal 
bias against the Convict or the proceedings were 
conducted in bad faith for a collateral purpose. The 
record reveals that the Convict was given an opportunity 
to object to the Members of the FGCM but he did not 
raise any such objection. In the circumstances, no case 
for mala fides of fact has been made out warranting 
interference by the learned High Court or by this Court.  
269.  
The learned counsel for the Petitioner had 
contended that the Convict was not defended by a Civil 
Defence Counsel of his own choice before the FGCM. In 
CPs.842/2016, etc. 
169 
this behalf, reference was made to the Article 10(2) of 
the Constitution. The Convict was tried under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
Army (Amendment) Act, 2015, which as per the 
judgment of this Court, reported as District Bar 
Association, Rawalpindi and others (supra) was validly 
and effectively incorporated in the First Schedule of the 
Constitution, hence, in view of the Article 8(3) of the 
Constitution, the provisions of the Pakistan Army Act, 
1952, as amended by the Pakistan Army (Amendment) 
Act, 2015, are immune from challenge on the ground of 
being in violation of the Fundamental Rights, including 
those guaranteed by Articles 10 and 10-A. Furthermore, 
the record reveals that the Convict was specifically 
asked whether he wished to be defended by a Civil 
Defence Counsel but he declined, therefore, a Defending 
Officer was appointed in accordance with Rule 81 of the 
Pakistan Army Act Rules, 1954. Such a course of action 
is in consonance with the law, as has been held by this 
Court in the case of Muhammad Mushtaq and another 
(supra).  
 
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict too are of little 
CPs.842/2016, etc. 
170 
significance and do not vitiate the trial by the FGCM, as 
has been held by this Court in the judgment, reported 
as Mrs. Shahida Zahir Abbasi and 4 others (supra). 
270.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore, Section 91 of the Pakistan 
Army Act, was not applicable, as a consequence 
whereof, the period of time between the date of 
occurrence and the date of trial has no material effect. 
The examination of the record of the FGCM reveals that 
all the procedural requirements, more particularly, the 
Rules that ensure a fair trial and preclude prejudice to 
the accused were complied with. Summary of evidence 
had been taken and was laid before the FGCM, as is 
apparent from the record of the proceedings thereof. The 
nature of the charge was explained to him. An 
Interpreter was also appointed. The Convict chose not to 
engage a Civil Defence Counsel despite being given an 
opportunity to do so, hence, a Defending Officer was 
appointed. He was granted an opportunity to object to 
the Members of the FGCM, the Defending Officer and 
the Interpreter, who were all sworn in as required by the 
law. The charge was formally framed to which the 
CPs.842/2016, etc. 
171 
Convict pleaded not guilty. The prosecution witnesses 
were examined on Oath and subjected to cross-
examination and an opportunity was given to produce 
evidence in his defence, which was declined. The Convict 
was allowed to make a statement, which was so 
recorded and the Convict again admitted his guilt. The 
sentence has been confirmed in accordance with the 
law.  
271.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, yet, even otherwise, irregularity 
if any, stood cured in view of Rule 132 of the Pakistan 
Army Rules Act, 1954 and, even otherwise, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the High Court, as has 
been stated above.  
272.  
It is now settled law that while exercising the 
powers of Judicial Review in such like cases neither the 
learned High Court nor this Court can sit in appeal over 
the conclusion drawn by the FGCM or analyze the 
evidence produced before it, in this behalf. However, we 
have examined the record in the instant case. The 
CPs.842/2016, etc. 
172 
evidence, inter alia, included a judicial confession, which 
was proved by the learned Judicial Magistrate, who 
recorded the same and appeared as a witness before the 
FGCM. The Convict never retracted from his confession. 
The Convict, on his own, in his statement before the 
FGCM, admitted his guilt. In the circumstances, it 
cannot be said that the conclusions drawn by the FGCM 
are based on no evidence or insufficient evidence or are 
otherwise improbable or blatantly unreasonable. The 
learned counsel for the Petitioner has not been able to 
persuade us that the conclusion drawn, conviction 
recorded and sentence passed are not countenanced by 
law. Hence, no case of malice in law has been made out.  
273.  
The examination of the record also reveals that 
the FGCM was constituted and convened in accordance 
with the provisions of the Pakistan Army Act and the 
Rules framed thereunder, hence, the conviction and 
sentence do not appear to be coram non judice. 
274.  
In short, it appears from the record that the 
Convict, being subject to the Pakistan Army Act was 
tried for the offences triable by the FGCM, which was 
convened and constituted in accordance with the law. 
No personal bias of any Member of the FGCM against 
CPs.842/2016, etc. 
173 
the Convict has been established nor that the 
proceedings were mala fides or conducted in bad faith 
for a collateral purpose. It does not appear to be a case 
of no evidence or insufficient evidence nor the 
conclusions drawn blatantly unreasonable or wholly 
improbable. No illegality in the conduct of the trial 
exists. The Law and the Rules, more particularly, those 
protecting the rights of the accused were adhered to. No 
case of malice in law or coram non judice was made out. 
275.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
CPs.842/2016, etc. 
174 
276.  
In this view of the matter, we find ourselves 
unable to interfere with the impugned judgment dated 
12.04.2016 of the learned Peshawar High Court, 
dismissing the Constitutional Petition i.e. Writ Petition 
No.1271-P of 2016, challenging the conviction and 
sentence of the Convict.     
277.  
Civil Petition for Leave to Appeal No.1541 of 
2016, pertains to a Civilian Muhammad Arbi alias Sher 
Khan (Convict) son of Hafiz Muhammad Sadiq, who was 
convicted and sentenced by a FGCM convened and 
constituted under the Pakistan Army Act, 1952, as 
amended by the Pakistan Army (Amendment) Act, 2015, 
for the offences of being a Member of a known religiously 
motivated terrorist organization and attacked, alongwith 
others, the Law Enforcement Agencies, causing the 
death and injuries to its personnel. He was also accused 
of preparing explosives devices and suicide jackets for 
terrorist activities against the Law Enforcement Agencies 
as well as for the abetment of the attack on Bannu Jail 
and providing assistance in the escape of high profile 
terrorists and other prisoners from the said Jail and 
causing injuries to the officials of the Law Enforcement 
Agencies.   
CPs.842/2016, etc. 
175 
278.  
The offences for which the Convict was 
charged were punishable under the ordinary law of the 
land triable by a Criminal Court, hence, constituted a 
"civil offence" in terms of sub-section (3) of Section 8 of 
the Pakistan Army Act, therefore, the offences were 
liable to be tried by the FGCM in view of Section 59 of 
the Pakistan Army Act, 1952. The offences for which the 
accused was charged fell within the purview of Section 
2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view 
of Section 2(1), the Convict by operation of law was 
subject to the Pakistan Army Act. In the circumstances, 
the FGCM had the jurisdiction to try the Convict for the 
offences of which he was accused that too irrespective of 
the point of time when the offence was committed. It 
was also noticed that the Convict did not object to his 
trial by the FGCM, as is evident from the record of the 
proceedings. In the circumstances, the conviction and 
sentence awarded by the FGCM do not suffer from want 
of inherent jurisdiction.  
279.  
The contention of the learned counsel for the 
Petitioner regarding alleged lack of full access to the 
record is also misconceived as such access was given in 
terms of a specific Order passed by this Court. It has 
CPs.842/2016, etc. 
176 
also been noticed that no application in terms of Rule 
130 of the Pakistan Army Act Rules, 1954, was ever 
made to the Competent Authority for the supply of 
copies of the proceedings of the FGCM, at any point of 
time, not even when the matter was pending before the 
learned High Court or before this Court.  
280.  
The Petitioner has neither pleaded nor proved 
on record with the requisite particularity that the 
Members of the FGCM or any of them had a personal 
bias against the Convict or the proceedings were 
conducted in bad faith for a collateral purpose. The 
record reveals that the Convict was given an opportunity 
to object to the Members of the FGCM but he did not 
raise any such objection. In the circumstances, no case 
for mala fides of fact has been made out warranting 
interference by the learned High Court or by this Court.  
281.  
The learned counsel for the Petitioner had 
contended that the Convict was not defended by a Civil 
Defence Counsel of his own choice before the FGCM. In 
this behalf, reference was made to the Article 10(2) of 
the Constitution. The Convict was tried under the 
Pakistan Army Act, 1952, as amended by the Pakistan 
Army (Amendment) Act, 2015, which as per the 
CPs.842/2016, etc. 
177 
judgment of this Court, reported as District Bar 
Association, Rawalpindi and others (supra) was validly 
and effectively incorporated in the First Schedule of the 
Constitution, hence, in view of the Article 8(3) of the 
Constitution, the provisions of the Pakistan Army Act, 
1952, as amended by the Pakistan Army (Amendment) 
Act, 2015, are immune from challenge on the ground of 
being in violation of the Fundamental Rights, including 
those guaranteed by Articles 10 and 10-A. Furthermore, 
the record reveals that the Convict did not claim to be 
defended by a Civil Defence Counsel, therefore, a 
Defending Officer was appointed in accordance with 
Rule 81 of the Pakistan Army Act Rules, 1954. Such a 
course of action is in consonance with the law, as has 
been held by this Court in the case of Muhammad 
Mushtaq and another (supra).  
The contentions of the learned counsel with regard 
to the arrest and detention of the Convict are of little 
consequence and do not vitiate the trial by the FGCM, 
as has been held by this Court in the judgment, 
reported as Mrs. Shahida Zahir Abbasi and 4 others 
(supra). 
CPs.842/2016, etc. 
178 
282.  
Since the Convict was accused of civil offence 
and tried under Section 59 of the Pakistan Army Act, 
1952, as amended, therefore, Section 91 of the Pakistan 
Army Act, was not applicable, as a consequence 
whereof, the period of time between the date of 
occurrence and the date of trial has no material effect. 
The examination of the record of the FGCM reveals that 
all the procedural requirements, more particularly, the 
Rules that ensure a fair trial and preclude prejudice to 
the accused were complied with. Summary of evidence 
had been taken and was laid before the FGCM, as is 
apparent from the record of the proceedings thereof. The 
nature of the charge was explained to him. An 
Interpreter was also appointed. The Convict chose not to 
engage a Civil Defence Counsel, hence, a Defending 
Officer was appointed. He was granted an opportunity to 
object to the Members of the FGCM, the Defending 
Officer and the Interpreter, who were all sworn in as 
required by the law. The charge was formally framed to 
which the Convict pleaded not guilty. The prosecution 
witnesses were examined on Oath and subjected to 
cross-examination and an opportunity was given to 
produce evidence in his defence, which was declined.  
CPs.842/2016, etc. 
179 
The Convict was allowed to make a statement, which 
was so recorded and the Convict admitted his guilt. The 
sentence has been confirmed in accordance with the 
law.  
283.  
Though the learned counsel for the Petitioner 
has not been able to point out any deviation from the 
Pakistan Army Act or the Rules framed thereunder in 
the conduct of the trial, yet, even otherwise, irregularity 
if any, stood cured in view of Rule 132 of the Pakistan 
Army Rules Act, 1954, and furthermore, the matter of 
procedural irregularities is beyond the scope of the 
Constitutional jurisdiction of the High Court, as has 
been stated above.  
284.  
It is settled law that neither the learned High 
Court nor this Court can sit in appeal over the 
conclusion drawn by the FGCM or analyze the evidence 
produced before it. However, we have scanned the 
record in the instant case. The evidence besides an eye 
witness account included a judicial confession, which 
was proved by the learned Judicial Magistrate, who 
recorded the same and appeared as a witness before the 
FGCM. The Convict never retracted from his confession. 
The Convict, on his own, in his statement before the 
CPs.842/2016, etc. 
180 
FGCM, admitted his guilt. In the circumstances, it 
cannot be said that the conclusions drawn by the FGCM 
are based on no evidence or insufficient evidence or 
otherwise improbable. The learned counsel for the 
Petitioner has not been able to persuade us that the 
conclusion drawn, conviction recorded and sentence 
passed are not countenanced by law. Hence, no case of 
malice in law has been made out.  
285.  
The examination of the record reveals that the 
FGCM was constituted and convened in accordance with 
the provisions of the Pakistan Army Act and the Rules 
framed thereunder, hence, the conviction and sentence 
do not appear to be coram non judice. 
286.  
In short, it appears from the record that the 
Convict, being subject to the Pakistan Army Act was 
tried for the offences triable by the FGCM, which was 
convened and constituted in accordance with the law. 
No personal bias of any Member of the FGCM against 
the Convict has been established nor was the 
proceedings conducted mala fides or conducted in bad 
faith for a collateral purpose. It does not appear to be a 
case of no evidence or insufficient evidence nor the 
conclusions drawn appear to be blatantly unreasonable 
CPs.842/2016, etc. 
181 
or wholly improbable. No illegality in the conduct of the 
trial exists. The Law and the Rules, more particularly, 
those protecting the rights of the accused were adhered 
to. No case of malice in law or coram non judice was 
made out. 
287.  
The extraordinary circumstances necessitating 
the enactment of the 21st Constitutional Amendment Act 
and the Pakistan Army (Amendment) Act, 2015 are 
articulated in the Preambles thereof. The nature of the 
offence, the commission whereof the Convict in the 
instant case was accused is exactly the “mischief” 
sought to be suppressed by the aforesaid Enactments. 
The selection of the instant case for trial by the FGCM 
reflects the due fulfillment of the mandate and purpose 
of the law. The learned counsel for the Petitioner was 
unable to make out even the semblance of a case that 
the selection process in this behalf was tainted with 
mala fides of facts or law or even otherwise was without 
jurisdiction or coram non judice. 
288.  
In this view of the matter, we are not 
persuaded to interfere with the impugned Order dated 
12.05.2016 
of 
the 
learned 
Lahore 
High 
Court, 
Bahawalpur 
Bench, 
dismissing 
the 
Constitutional 
CPs.842/2016, etc. 
182 
Petition i.e. Writ Petition No.3315-P of 2016, challenging 
the conviction and sentence of the Convict.     
289.  
In view of the above, all the titled Civil 
Petitions for Leave to Appeal are dismissed and leave 
declined. 
 
 
 
 
 
 
 
 
 
Chief Justice 
 
 
 
 
 
 
 
 
 
      Judge 
 
 
 
 
 
 
 
 
 
      Judge 
 
 
 
 
 
 
 
 
 
      Judge 
 
 
 
 
 
 
 
 
 
      Judge 
'NOT APPROVED FOR REPORTING' 
       
 
 
Announced on ____________ at ___________  
 
 
 
 
 
 
 
 
 
Judge 
