On 28th March 2023, Major General Syed Zafar Mehdi Askari, along with

family members held a press conference regarding the military trial and
sentencing of his son Hassan Askari. The case of Hassan Askari has
witnessed local and international condemnation as calls have grown
against his incarceration as he faces sedition, treason as well as
incitement towards mutiny. These accusations stemmed from Hassan
writing several letters to the Chief of Army Staff as well as his Top
General Staff regarding the constant military interference into civilian
affairs and how this form of meddling is sure to create an economic and
political crisis within the country. He would soon find that his audience
was not interested in such facts and soon found himself being
transferred to a military court immediately after his arrest by the police
wherein he faced a trial that countless before him and many more after
him were to face. While much has been written regarding the condition
of his trial, many have found it shocking as well as horrifying as to what
law allows for a civilian to be tried in Military Courts. This Erosion of
Civilian Authority in name of Military Security stems from the early days
of the Country
The formation of Military Courts stems from the Army Act 1952 which
meant to be a military oriented legislation during the time of its
enactment with Section 2 of said act clearly stating that the law applied
to military individuals. This changed under the regime of Field Marshal
Ayub Khan as by 1966, both East and West Pakistan witnessed great
political turbulence and there was fear within the military regime that
compassionate civilian courts and likeminded judges would refuse to
prosecute the political recalcitrant especially those in East Pakistan. As
Bengali political movement grew and the Awami League became the
voice of the East, the Army Act was amended with the Defense Law
Ordinance Act 1967 to include the infamous Subsection D to Section 2
which included non-military personal who would attempt to incite any
Military or Military employed personal from their duty or provide
information regarding the military to the enemy, shall no longer be
tried under Civilian Court as previously held but under Military Court.
This act should have been immediately challenged by the Courts of
Pakistan and the sanctity of a Civilian and his Fundamental Rights
promptly safeguarded but unfortunately history speaks differently as
the Lahore High Court, in the important case PLD 1968 Lah 1061, Allah
Rakha vs District Magistrate, was petitioned regarding the question of
jurisdiction when Allah Rakha was immediately handed over to the
custody of 406 Field Intelligence Unit, Sialkot and vanished for months.
The said Honourable Court dismissed the petition and held that the said
Act was legal and the incarceration in accordance to the law of the
land.
Sadly the situation only deteriorated as the aforementioned
amendment was used to arrest and hold to summary trial countless
individuals, aggravating the situation within the two wings which later
on culminated into East Pakistan becoming Bangladesh. The Superior
Courts faced an opportunity to right this wrong and in PLD 1975 SC 506
a bench 5 Supreme Court judges under the Chief Justice Hamoodur
Rahman faced a legal question being raised by a retired military officer
Brigadier F.B. Ali wherein he questioned the 1967 Ordinance and
cautioned the Court that it should be declared void or interpreted
extremely strictly so as Ordinary Civilians or retired personal don’t find
themselves facing the harassment and horror of a military trial. The
Court disagreed and instead declared the aforementioned ordinance to
be vast in nature, including all, Civilian or Retired Military, Subject to it
and thus formed the F.B Ali Doctrine which is applicable to this day.
Rather than lessons being learned from this, the state doubled down as
in 1977 the General Elections were held on 7th of March and Zulfiqar Ali
Bhutto won a landslide controversial victory which resulted in protests.
As the crackdown intensified on 30th April 1977 the broken
“Parliament” passed a massive amendment to Section 2 Subsection D
of the Army Act. After much scholarly study it is now a settled matter
that by April 1977 power neither resided with Bhutto nor tiwht the
Pakistan National Alliance and the said amendment allowed the
Military Courts have jurisdiction on multiple provisions of the Pakistan
Penal Code which not only included sedition or reioting but also Theft,
Dacioty, Disobedience to state, false evidence, Murder, Hurt of all
forms, assault, kidnapping, rape, robbery, or any form of mischief that
causes injury to public property along with multiple civil laws which
ranged from treason to or impeding of any state machinery. A Month
later of the passing of this amendment, General Zia ul Haq would
declare martial law and a crackdown would begin all over Pakistan
which would result in individuals having been disappeared and not
found to this day. As the situation aggravated, cases appeared before
the Courts of Pakistan regarding the legality of these acts. The first of
this instance appeared in front of the Honourable Lahore High Court in
1980 PCRLJ 444 wherein the Petitioner sought bail as the Military Court
had not followed proper procedure in his detention. The said High
Court declared that they had no jurisdiction regarding Military Trials
and since Section 133 of the Pakistan Army barred appeal of all kinds at
that time, thus told the civilian detainee that he had no recourse and
just like the Courts of Pakistan declared that they could no longer
protect the Fundamental Rights of the People of Pakistan in what was
clearly an illegal law yet the law stayed and the same became a
precedent as all High Courts of the country declared that they had no
jurisdiction. Time passed by and the military rule subsided but
unfortunately the dawn of Civilian governance brought no hope as the
Parliament, not to disturb the uneasy peace between the institutions,
refused to look into the law and only after much pressure did an
amendment pass in 1992 that simply allowed for appeals to be filed
however the process was quite similar to the Judge, Jury, Defense,
Prosecution and executioner being the same person.
The question regarding the legality of these provisions was raised in
1996 when the Supreme Court of Pakistan Adjudged in the case PLD
1996 SC 632 wherein a three bench of the Supreme Court not only
declared the process of trial under Military Court to be a “Fair Trial” but
also held that the Detention Provisions of the Pakistan Army Act,
despite being against Fundamental Rights were an exceptions since the
Act itself was under the protection of the exception in Article 8 which
states that laws inconsistent with Fundamental Rights were void thus
those provisions could not be set aside and when the Detainee raised
the issue of torture within custody, the Superior Court held that since
the perpetrators denied such a claim thus this controversy cannot be
investigated and the victims can always file a complaint to the Field
General Court Martial against the perpetrators. Apart from a handful of
exceptions, the Courts of Pakistan continued this “Doctrine” which was
also cemented by the Federal Shariah Court as well in 1996 MLD 469.

In 2015 and 2017 the Sections were amended again as provisions of

PPC were removed but those of Anti-Terror Act were added which
mostly covered the amended provisions and when the same is read
with Actions to Aid in Civil Power Act, there is hardly any room for any
celebration whatsoever as Military Courts continue to function and
continue to try Civilians.
The Superior Courts faced two great opportunities to right this wrong
but only cemented the F.B Ali Doctrine in 2004 SCMR 1761 and PLD
2009 Sc 866. A most recent and harrowing example of this form of
“Trial” being declared legal is in PLD 2021 Peshawar 135 and upheld the
infamous Doctrine.
Decades have passed and many individuals have found themselves
cruelly detained and incarcerated and as one