Practice Relating to Rule 100. Fair Trial Guarantees
Section E. Necessary rights and means of defence
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)).
The manual further states:
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.
In addition, the manual states:
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.