Pakistan
Practice Relating to Rule 100. Fair Trial Guarantees
In its judgment in the Mirani case in 1998, the Supreme Court of Pakistan stated:
12. … It may be observed that by now it is a well settled proposition that a person cannot be condemned without providing him a fair opportunity to meet the allegation. In this regard reference may be made to the case of Government of Balochistan through Additional Chief Secretary v Azizullah Memmon and 16 others (PLD 1993 SC 341), wherein after referring certain case law the following conclusion was recorded by this Court as to the right of access to Courts and justice:–
“12 Another aspect of the case is that by these provisions the rights of access to Courts and justice has been denied. This by itself is an infringement of fundamental rights which provide that every citizen shall be entitled to equal protection of law and will not be deprived of life or liberty save in accordance with law. An examination of Articles 9 and 25 read collectively does not permit the Legislature to frame such law which may bar right of access to the Courts of law and justice. This aspect of the case was considered in Sharaf Faridi v Islamic Republic of Pakistan … as follows:–
13. The above extract indicates what are the basic requirements of the doctrine “due process of law”, which is enshrined inter alia in Article 4 of our Constitution. It is intrinsically linked with the right to have access to justice, which this Court has held inter alia in the above report as a fundamental right. This right inter alia includes the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. A person cannot be said to have been given a fair and proper trial unless he is provided a reasonable opportunity to defend the allegation made against him. 
Pakistan, Supreme Court, Mirani case, Judgment, 26 June 1998, §§ 12–13.

In the Liaqat Hussain case in 1999, the Supreme Court of Pakistan stated:
33. The learned counsel for the petitioners have vehemently contended that since the Armed Forces by virtue of clause (1) of Article 243 of the Constitution are under the control and command of the Federal Government, and as under the Army Act the power to dismiss, remove and reduce in rank vests in the Executive, the personnel of the Armed Forces, who are to man the above four types of Courts are under the direct administrative control of the Executive and that the above Courts and personnel do not qualify for holding a judicial office in terms of the law enunciated by this Court in the case of Mehram Ali [Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC 1445)]. They have invited our attention to Chapters III and IV of the Army Act. The former deals with the termination of service and the latter provides for summary reduction and punishment otherwise than by sentence of Court Martial. They have particularly invited our attention to section 16 contained in Chapter III of the Army Act, which provides that the Federal Government may dismiss or remove from service any person subject to this Act. There is no doubt that the cumulative effect of the above Constitutional provision, namely, Article 243 and of the Constitution is that the personnel of Armed Forces are under the final administrative control of the Federal Government.
It may further be observed that section 3 of the impugned Ordinance [Ordinance XII of 1998] provides that as directed by the Federal Government, the Chiefs of the Staff of the Armed Forces or an officer not below the rank of Brigadier or equivalent rank in Pakistan Navy, or Pakistan Air Force authorised by the concerned Chief of the Armed Forces in this behalf, may convene as many Courts as may be necessary to try offences triable under the Ordinance including the convening of Courts of appeals to hear appeals arising out of the decisions made and sentences passed by the Courts so convened. The above provision also indicates that the Federal Government has full control as to the convening of the Courts under the Army Act for the trial of the offences under the impugned Ordinance, though the personnel to man such Courts are to be nominated by the Army Authorities. The impugned Ordinance does not envisage the establishment of permanent Military Courts but it provides for the trial of civilians for the offences mentioned in the Ordinance by any of the four types of Courts mentioned in section 80 of the Army Act to be convened for each case comprising different Army personnel. In pith and substance the above types of Courts cannot be equated with the normal Courts envisaged under the Constitution as enunciated by this Court in the case of Mehram Ali v. Federation of Pakistan (supra). It may be pointed out that, this Court … has held that the right to have access to justice through independent Courts is a Fundamental Right and, therefore, any law which makes a civilian triable for a civil offence, which has no nexus with the Armed Forces or defence of the country, by a forum which does not qualify as a Court in terms of the law enunciated particularly in Mehram Ali’s case (supra) will be violative of Articles 9, 25, 175 and 203 of the Constitution.

41. It was further contended by the learned Attorney-General that no one has any vested right in a particular forum for trial specially when procedure provided under the Army Act for holding trial is not violative of any principle of fair trial as held by this Court inter alia in the case of Brig. (Retd.) F.B. Ali (supra). The above contention is also devoid of any force. It may again be observed that this Court has held … that the right to have access to justice through the forums as envisaged by the Constitution is a Fundamental Right. The above view was reiterated by this Court in the case of Al-Jehad Trust v. Federation of Pakistan and others (PLD 1996 SC 324) … If the forum provided under the impugned Ordinance would have been within the parameters laid down by this Court in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) (supra), the above contention would have force, but since I have held that the Military Courts do not fall within the compass of the law enunciated in the above case, the trial by such Military Courts of civilians for civil offences which have no nexus with the Armed Forces or defence of Pakistan would be violative of the Constitution.

43. As regards the violation of Article 25 of the Constitution, it may be observed that the contention of the learned counsel for the petitioners was that the impugned Ordinance contravenes the above Article, inasmuch as it gives discretion to the Federal Government to pick and choose cases which may be referred to the Military Courts. On the other hand, the learned Attorney-General has urged that the offences triable under the impugned Ordinance are those which are mentioned in section 6 and the Schedule to the impugned Ordinance and that this Court has already held in more than one case that different laws can be enacted for different sexes, persons of different age group, persons having different financial standards and persons accused of heinous crimes. No doubt, that this Court … has held so, which has been reiterated in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) (supra). However, in the present case the basic question is as to the vires of the impugned Ordinance on the ground of providing parallel judicial system, but at the same time the impugned Ordinance is also violative of Article 25 of the Constitution, inasmuch as it gives discretion to the Federal Government under section 3 thereof to pick and choose cases for referring to the Military Courts as has been held by this Court in the case of Brig. (Retd.) F.B. Ali. 
Pakistan, Supreme Court, Liaqat Hussain case, Judgment, 22 February 1999, §§ 33, 41 and 43.

Clearly, an accused charged of offences/an unconvicted person is presumed to be innocent and has a vested right to a fair trial before a Court or Tribunal validly established under Article 175(1) of the Constitution. Even if Military Courts are treated as Special Courts, they cannot be declared valid as in the impugned Ordinance, no provision of appeal has been provided against the orders of the Military Courts before the Supreme Court nor their functioning and supervision have been made subordinate to it. Thus visualized, they do not fulfil the criteria of a “Court” exercising judicial functions within the purview of the guidelines provided in the case of Mehram Ali. The establishment of Military Courts is, therefore, unwarranted by any Constitutional provision. Viewed from this angle as well, the impugned legislation does not fall within the category of reasonable classification. Thus visualised, notwithstanding the bona fides and the noble object of the Federal Government to suppress/curb terrorism and punish the persons/accused mentioned in the Ordinance, the same cannot be called intra vires of the Constitution.

53. Viewed from whatever angle, the impugned Ordinance is ultra vires of the Constitution in so far as it takes away the adjudicatory powers of the Judiciary. 
Pakistan, Supreme Court, Liaqat Hussain case, Separate opinion of Judge Irshad Hasan Khan, 22 February 1999, §§ 51 and 53.

In my considered view, the establishment of Military Courts for trial of civilians amounts to [a] parallel system for all intents and purposes which is wholly contrary to the known existing judicial system having been set up under the Constitution and the law. 
Pakistan, Supreme Court, Liaqat Hussain case, Separate opinion of Judge Raja Afrasiab Khan, 22 February 1999.

The Manual of Pakistan Military Law (1987) states:
At the outset of deliberations, the court must remember that the accused is presumed to be innocent until he is proved to be guilty, and that the burden of proof rests upon the prosecution. Unless, therefore, the guilt of the accused has been established beyond reasonable doubt, the accused must be acquitted, as the prosecution has failed to sustain adequately the burden of proving his guilt. 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 42.

In 2001, in its second periodic report to the Committee on the Rights of the Child, Pakistan stated:
There is a presumption of innocence in favour of all accused persons unless proved guilty. In all criminal cases, the burden of proof is on the prosecution, which must prove its case beyond any doubt to secure a conviction. In the absence of such evidence the benefit of doubt goes to the accused. 
Pakistan, Second periodic report to the Committee on the Rights of the Child, 11 April 2003, UN Doc. CRC/C/65/Add.21, submitted 19 January 2001, § 390; see also § 367.

The Manual of Pakistan Military Law (1987) states:
Full information to be given to accused. – As soon as practicable after an accused has been remanded for trial by a district or general court martial and at least twenty-four hours before he is brought up for trial, an officer must give him a copy of the summary, or (if there is no summary of evidence) the abstract of evidence, and apprise him of his rights in connection with the preparation of his defence (PAA [Pakistan Army Act] Rule 23(2)).

As soon as practicable before he is arraigned for trial, an officer must hand over to him a copy of the charge-sheet, and, if necessary explain the charge-sheet charges to him. The officer in question must also inform him of his rights in connection with the securing of witnesses on his behalf (PAA Rule 24). 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 31.

The Manual of Pakistan Military Law (1987) states:
21. Full information to be given to accused. – As soon as practicable after an accused has been remanded for trial by a district or general court martial and at least twenty-four hours before he is brought up for trial, an officer must give him a copy of the summary, or (if there is no summary of evidence) the abstract of evidence, and apprise him of his rights in connection with the preparation of his defence (PAA [Pakistan Army Act] Rule 23(2)).
As soon as trial has been ordered, proper opportunity to prepare his defence must be afforded to the accused, who must be permitted to have free communication with any witnesses, whom he may desire to call, and with any friend, defending officer or legal advisor, who he may wish to consult if they are available ([PAA] Rule 23(1)).
As soon as practicable before he is arraigned for trial, an officer must hand over to him a copy of the charge-sheet, and, if necessary explain the charge-sheet charges to him. The officer in question must also inform him of his rights in connection with the securing of witnesses on his behalf (PAA Rule 24).
The accused, if charged jointly with any person, who he claims as a material witness for his defence may apply to be tried separately from that person, and the convening officer may grant a separate trial if the nature of the charge permits (PAA Rule 25).
The accused is entitled to have, (if he so desires it) a list of the officers, who will form the court, as soon as they have been detailed (PAA Rule 24(3)); he is not bound to give the prosecutor a list of his own witnesses (PAA Rule 119).
22. Securing legal aid for defence and prosecution. – The accused may himself arrange for the services of counsel to represent him at his trial. If he intends to be represented by counsel, he must give notice to that effect, so that the convening officer may, if he considers it desirable, obtain the services of counsel on behalf of the prosecutor. If the accused does not intend to be so represented but counsel has been obtained on behalf of the prosecutor, the convening officer must take steps to inform the accused to that effect not less than seven days before the trial, so that the accused may himself obtain counsel for his defence, if he so desires (PAA Rule 83). Similar notice should be given to the accused where the convening officer intends to appoint or apply for the services of an officer with legal qualifications to act as prosecutor at the trial.
23. Qualifications, duties, etc., of counsel and defending officer. – As to the qualifications of counsel, their functions, rights and duties, see PAA Rules 82 and 87.
A defending officer has in the absence of the defence counsel, same functions, rights and duties as counsel. The “friend” of the accused can only act as an advisor to the accused and has no right of audience (PAA Rule 81).
24. Assignment of defending officer for accused. – In order to ensure that an accused person is represented at his trial if he so desires, it is the duty of the officer referred to in paragraph 21 above, at the time he hands over the summary or abstract of evidence to the accused, to ask him to state in writing if he wishes to have a defending officer assigned to him by the convening officer; if he does so wish, the convening officer must use his best endeavours to secure the services of a suitable officer (PAA Rules 23(2)). 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, pp. 31–32; see also pp. 53–54.

After trial has been ordered the commanding officer should satisfy himself that the following provisions are complied with: –
a. The accused must be warned for trial not less than 24 hours before the court assembles; must be informed by an officer of every charge on which he is to be tried; must be given a copy of the charge-sheet and a vernacular translation of the same and of the summary or abstract of evidence, and notice of the intention to call witnesses whose evidence is not contained in the summary or abstract and an abstract of their evidence and must be informed of the ranks, names and units of the officers, who are to form the court as well as of any waiting members (Rule 24).
b. The accused must be informed that on his giving the names of any witnesses for the defence, reasonable steps will be taken to procure their attendance.
c. The accused must be afforded proper opportunity for preparing his defence.

f. In a case of a joint trial, the accused persons should be informed of the intention to try them together and of their right to claim separate trials if the nature of the charge admits of it. 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, pp. 189–190; see also pp. 559–562.

Utmost liberty consistent with the interests of parties not before the court and with the dignity of the court itself should be allowed to the accused in making his defence … The court should, if necessary, adjourn to allow him time for its preparation. 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 646.

The Manual of Pakistan Military Law (1987) states: “The accused must have full liberty of cross-examination.” 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 19; see also pp. 23, 39, 41, 44, 100–102 and 239.

The Manual of Pakistan Military Law (1987) states:
Interpreter. – An interpreter will be appointed when any evidence is given in a language which the court or the accused or an officer attending the trial does not understand (PAA Rule 91). If an interpreter has been appointed he must take the interpreter’s oath or affirmation, though the proceedings are not necessarily invalidated by failure to swear or affirm the interpreter (PAA Rule 132). It will generally be convenient that the officer holding the trial should (if competent to interpret in the language of the accused) himself take the interpreter’s oath or affirmation in addition to the oath or affirmation prescribed for the court. If necessary, he can appoint a competent interpreter, who may be one of the officers attending the trial. 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 54.

Pakistan’s Anti-Terrorism Act (1997) states:
(10) Any accused person may be tried in his absence if the Anti-Terrorism Court, after such inquiry as it deems fit, is satisfied that such absence is deliberate and brought about with a view to impeding the course of justice:
Provided that the accused person shall not be tried under this subsection unless a proclamation has been published in respect of him in at least three national daily newspapers out of which one shall be in the Urdu language requiring him to appear at a specified place within seven days failing which action may also be taken against him under section 88 of the Code:
Provided further that the Special Court will proceed with the trial after taking the necessary steps to appoint an advocate to defend the accused person who is not before the Court.
Explanation – An accused who is tried in his absence under sub-section (10) shall be deemed not to have admitted the commission of any offence for which he has been charged.
(11) The advocate appointed under the second proviso to sub-section (10) shall be a person selected by Anti-Terrorism Court for the purpose and he shall be engaged at the expense of the Government.
(11-A) Nothing contained in sub-section (10) or (11) shall be construed to deny the accused the right to consult or be defended by a legal practitioner of his own choice.
(12) If, within sixty days from the date of his conviction, any person tried under subsection (10) appears voluntarily, or is apprehended and brought before Anti-Terrorism Court and proves to its satisfaction that he did not abscond or conceal himself for the purpose of avoiding the proceeding against him, the Anti-Terrorism court shall set aside his conviction and proceed to try him in accordance with law for the offence with which he is charged:
Provided that the Anti-Terrorism Court may exercise its powers under this sub-section in a case in which a person as aforesaid appears before it after the expiration of the said period and satisfies it that he could not appear within the said period by reason of circumstances beyond his control. 
Pakistan, Anti-Terrorism Act, 1997, Section 19(10)–(12).

The Manual of Pakistan Military Law (1987) states:
41. Confession must be voluntary. – To be relevant, and therefore admissible as evidence, a confession must be voluntary. Though it is highly desirable that the prosecutor should prove the circumstances in which a confession was made, the onus lies upon the accused of showing that a confession made by him was not voluntary and, therefore, irrelevant. Unless, therefore, it appears doubtful whether a confession is voluntary, a court need not require the prosecutor affirmatively to establish that fact.
42. What this means. – A confession is not deemed to be, if it appears to the court to have been caused by any inducement, threat, or promise, having reference to the charge against the accused person, proceeding from a person in authority (e.g., the prosecutor person having the custody of the accused) and sufficient, in the opinion of the court, to give the accused person grounds, which would appear to him to be reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to proceedings against him (Qanun-e-Shahadat, Article 37). 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 76.

Pakistan’s Anti-Terrorism Act (1997) states:
Conditional admissibility of confession
Notwithstanding anything contained in the Qanun-e-Shahadat, 1984 (President’s Order No. 10 of 1984) or any other law for the time being in force, where in any Court proceedings held under this Act the evidence (which includes circumstantial and other evidence) produced raises the presumption that there is a reasonable probability that the accused has committed the offence, any confession made by the accused during investigation without being compelled, before a police officer not below the rank of a District Superintendent of Police, may be admissible in evidence against him if the Court so deems fit:
Provided that the confessional statement made before the District Police Officer or equivalent officer of security forces operating in aid of civil power in the military/security operational areas notified by the Government under section 4 of this Act, involving attack on the members of Armed Forces, Civil Armed Forces, Law Enforcement Agencies, Government installations, hotels or public property, shall be admissible in evidence. Provided further that the District Superintendent of Police before recording any such confession, had explained to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and that no District Superintendent of Police has recorded such confession unless, upon questioning the person making it, the District Superintendent of Police had reason to believe that it was made voluntarily; and that when he recorded the confession, he made a memorandum at the foot of such record to the following effect:
“I have explained to (… name …), that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(signed) Superintendent of Police.” 
Pakistan, Anti-Terrorism Act, 1997, Section 21(H).

In 2001, in its second periodic report to the Committee on the Rights of the Child, Pakistan stated the following principle from its Constitution: “The dignity of man is inviolable, and no person shall be subjected to torture for the purpose of extracting evidence (art. 14).”  
Pakistan, Second periodic report to the Committee on the Rights of the Child, 11 April 2003, UN Doc. CRC/C/65/Add.21, submitted 19 January 2001, § 366.

The Manual of Pakistan Military Law (1987) states:
Opening of court. – The court is now open, and the public, whether military or otherwise (including the press), may be admitted so far as accommodation permits. It may be closed at any time to enable the members to deliberate in private (PAA [Pakistan Army Act] Rule 67).
A court martial is an open court like other courts of justice, but it has inherent powers to sit in camera if such course is necessary for the administration of justice. 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 35.

Pakistan’s Anti-Terrorism Act (1997) states:
The Court may, subject to the availability of resources, make such necessary orders or take such measures, as it deems fit, within available resources, for the protection of a witness, judge, public prosecutor, counsel and other persons concerned in proceedings for an offence under this Act, which may also include the following measures –
(a) proceedings may be held in camera; or under restricted entry of members of the public, where necessary for the protection of the judge, witnesses or a victim’s family members or to prevent persons from crowding or storming the Court to intimidate the judge or to create a threatening atmosphere. 
Pakistan, Anti-Terrorism Act, 1997, Section 21.

Pakistan’s Anti-Terrorism Act (1997) states: “An appeal against the final judgment of Anti-Terrorism Court shall [be] to a High Court.” 
Pakistan, Anti-Terrorism Act, 1997, Section 25.

In his separate opinion in the Liaqat Hussain case before the Supreme Court of Pakistan in 1999, Judge Irshad Hasan Khan stated:
Clearly, an accused charged of offences/an unconvicted person is presumed to be innocent and has a vested right to a fair trial before a Court or Tribunal validly established under Article 175(1) of the Constitution. Even if Military Courts are treated as Special Courts, they cannot be declared valid as in the impugned Ordinance [Ordinance XII of 1998], no provision of appeal has been provided against the orders of the Military Courts before the Supreme Court nor [have] their functioning and supervision … been made subordinate to it. 
Pakistan, Supreme Court, Liaqat Hussain case, Separate opinion of Judge Irshad Hasan Khan, 22 February 1999, § 51.

The Manual of Pakistan Military Law (1987) states:
Where a person has been convicted or acquitted of an offence by a court martial or a criminal court or summarily dealt with or where the charge against him is dismissed, he is not liable to be summarily dealt with or tried by court martial for the same offence, or for an offence which is substantially the same. 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 239; see also pp. 411, 416 and 587.

In 2001, in its second periodic report to the Committee on the Rights of the Child, Pakistan stated the following principle from its Constitution: “No person can be prosecuted for the same offence more than once, and no one shall be compelled to give self-incriminating evidence (art. 13).” 
Pakistan, Second periodic report to the Committee on the Rights of the Child, 11 April 2003, UN Doc. CRC/C/65/Add.21, submitted 19 January 2001, § 366.