A farcical trial

The trial of former Prime Minister Nawaz Sharif, which led to his being sentenced to life imprisonment, was riddled with irregularities and contradictions. It is Pakistan's judiciary which is on trial now.

A. G. NOORANI

THE conviction of Nawaz Sharif on the charge of hijacking and the savage sentence of life imprisonment and confiscation of his entire properties, prounounced by Judge Rahmat Hussain Jafferi on April 6 in his Anti-Terrorism Court No. 1 in Karachi, prove t he truth of Maulana Azad's defiant denunciation of political trials before Calcutta's Chief Presidency Magistrate D. Swinner, on February 2, 1922. "History bears witness that whenever the ruling powers took up arms against freedom and right, the court ro oms were used as the most convenient and plausible weapons. The authority of courts is a force that can be used for both justice and injustice. In the hands of a just government, it becomes the best means of attaining right and justice; but, for a repres sive and tyrannical government, no other weapon is better suited for vengeance and injustice than this.

"Next to battlefields, it is in the courts that some of the greatest acts of injustice in the history of the world have taken place. From the holy founders of religions to inventors and pioneers of science, there is no movement for truth or justice which was not produced before the courts like criminals. The list of iniquities of courts of law is a long one and history has not yet finished singing the elegy to such miscarriages of justice."

It was, Gandhi said in his inimitable style, "an oration deserving penal servitude for life." The scholar Dr. Otto Kirchheimer has discussed the use of courts to lend a cloak of legality to repression in a pioneering work, Political Justice. There are varieties of political trials, including one used by the defence to propagate its political ideology. But "the classic political trial" is represented by "a regime's attempt to incriminate its foe's political behaviour with a view to evicting him from the political scene."

That was the sole purpose of Sharif's trial; not, unlike Z. A. Bhutto's trial, his murder. The Chief of the Army Staff (COAS), Gen. Pervez Musharraf, now Chief Executive, could not risk leaving the former Prime Minister at large. Still less, have him kil led. All he wanted was that his adversary be evicted from the political scene. He was not a "vindictive man," he repeatedly assured the world. Judge Jafferi obediently tailored his judgment to the needs of the regime. He was, forgive the pun, no Judge Je ffreyes the legendary "rascal in ermine" to exhibit extra zeal. He acquitted Sharif of all the charges studiously except hijacking, namely, attempts to murder and to abduct. The charge against the Prime Minister of Pakistan of waging war against the coun try was not considered worthy of being listed in the charges he framed. All the other accused were acquitted - Shahbaz, Sharif's brother and Chief Minister of Punjab, Syed Ghouse Ali Shah, Adviser on Sindh Affairs, Shahid Khagan Abbasi, Chairman of Pakis tan International Airlines (PIA), Rana Maqbool Ahmed, Inspector General of Police, Sindh, Sharif's man Friday Saifur-Rehman, and Mohammed Sraad Mehdi, his Principal Secretary.

The prosecution lodged an appeal against their acquittal as also against Nawaz Sharif, demanding a death sentence. The appeal before the Sindh High Court would largely centre on the charge of hijacking, an offence he is alleged to have committed with "th e approver Aminullah Choudhary only". He was given pardon. He was Director-General, Civil Aviation Authority (CAA).

On October 12, 1999 at about 4-30 p.m., the COAS was sacked by the Prime Minister, and replaced by Lt. Gen. Ziauddin, the chief of the Inter-Services Intellignece (ISI). News of the change was telecast by Pakistan TV at 5 p.m. Twenty minutes later some t roops went to the TV station where they were disarmed by the Military Secretary to the Prime Minister, Brigadier Javed Iqbal. Pervez Musharraf was returning from Colombo that day by PK-805 which was due to land at Karachi at 6-55 p.m. By 6-30 p.m. some a rmymen had reached the Prime Minister's house. The telephone exchange was taken over by 6-40 p.m. In Karachi, the airport was blocked by 6-30 p.m. and the pilot, Capt. Sarwat Hussain, was informed, around 6-50 p.m., that he could not land anywhere in Pak istan.

The charge is that the Prime Minister tried to prevent the COAS' return by issuing orders to Aminullah Choudhary, who proceeded to implement it. The pilot made first contact with the Air Traffic Control (ATC) in Karachi at 6 p.m. and received the routine permission. It was rescinded 50 minutes later. He had 198 passengers on board, including the COAS, and a limited amount of fuel. Eventually, the ATC permitted him to proceed instead to Nawsbshah but was asked soon thereafter to return to Karachi. He, ad mittedly, disregarded the direction and was proceeding to Nawabshah when the ATC asked him to speak to the military authorities. Major General Iftikhar spoke to the COAS who identified his voice. The plane landed at the Karachi airport at about 7- 50 p.m. Pakistan's fourth army rule had begun.

The entire trial was riddled with irregularities, contradictions and absurdities which no judicial mind should countenance. Neither Pervez Musharraf nor Major General Iftikhar gave evidence. Only the Private Secretary to the COAS, Brig. Nadeem Taj, who w as on the flight, did. The Judge's summary of his evidence in his judgment labours hard to minimise the COAS' control over the aircraft. Musharraf was "requested... to enter the cockpit... where the pilot informed him about the situation; that various options were discussed with regard to the landing of the aircraft at various airports but the same were discarded by the pilot, except Karachi and Nawabshah airports." At about 7-30 p.m. Iftikhar, the Division Commander, came on the line and asked the pilot to return to Karachi which he did. What follows is a judicial give-away: "And for that purpose the Chief of the Army Staff was called in the cockpit to identify the voice of General Iftikhar."

This is in direct and total contradiction to the version Pervez Musharraf himself gave, shortly after the event, to Rehana Hakeem, editor of the respected Karachi monthly Newsline (November 1999, pages 25-26). She, incidentally, hails from Belgaum . The COAS explicitly and repeatedly asserted that he gave the orders and the pilot complied. Initially when "he said 'We can only go to India' and I replied 'No, over my dead body". Moments later, the pilot asked me what to do and I said 'you land at Karachi' " But the lights at the airport had "probably" been switched off, he replied and they had moreover placed vehicles on the runway. "So, it's going to be a disaster. Then I finally told the pilot 'Now, you tell him (ATC) that we will land in Karachi because there is no other way... We have to take a decision'. " The pilot relayed the message. He received permission to land in Nawabshah. "I asked the pilot whether we could reach Nawabshah and he said 'Yes, we can'. So I said 'Okay, let's go'. " The pilot obviously needed an okay from the COAS whose role in the cockpit was not confined to identifying Iftikhar's voice - contrary to Judge Jafferi's preposterous finding.

Musharraf did not stop there. He proceeded to narrate his talk with Iftikhar, his inquiry about Karachi's Corps Commander Gen. Usmani, how he learnt of his sack at 5 p.m. "and then the army acted". He thereupon checked the fuel position with the pilot wh o replied that they could go to either place, Nawabshah or Karachi. "So, I told him, 'return to Karachi'. " Musharraf was in total control of the plane, even if in a situation of distress created by the Karachi ATC.

The pilot's evidence suppresses this fact totally. The Judge brusquely rejected the defence plea to summon the Chief Executive as witness. He writes: "The learned defence counsel has developed his arguments by stating that the aircraft was under the cont rol of General Pervez Musharraf who was not allowing the Captain pilot to return back to Karachi as he wanted to be sure that the army should complete the takeover of the situation. The argument of the defence counsel has no force at all, for the simple reason that General Pervez Musharraf was not aware of his retirement when the plane was not allowed to land at any airport in Pakistan till the arrival of the army at the ATC, because there is no evidence available on the record to prove such contention. The only evidence available on the record is of Captain Sarwat Hussain (the pilot)... to whom another question was asked that General Pervez Musharraf told him that there may be a trap for him, therefore, he should not land but the witness has replied in the negative. Another question was asked from him suggesting to him that under the orders of General Pervez Musharraf he did not comply with the orders of the ATC to which the witness has also denied."

The pilot's palpably false version was lapped up readily; "When my destination was declared, I had Nawabshah as my alternate airfield and when this was declined for me at that moment I went helpless and my command was crippled." This word is repea tedly used as proof of hijacking. Inconsistently enough, as repetitious is the narration of his disregard of the ATC's order to return to Karachi because "by that time (it had) eroded the trust that a pilot has in ATC, as such the directions were disregarded." The Judge adds for good measure: "There is ample evidence on the record which shows that the army had entered the ATC at the time when the directions of the ATC to the Captain for return to Karachi and land there were violated... I am clear in mind that the army had taken over the ATC when the pilot of the aircraft PK-805 had disobeyed the directions of ATC to return back to Karachi."

A plane cannot be said to have been hijacked by the Prime Minister giving orders through the DG, CAA and the ATC if its pilot is free to disregard them. This pilot did so confidently because he was constantly receiving orders from none other than the COAS as the Newsline interview proves to the hilt. No Judge in such circumstances should have disallowed the plea by persons on trial for their lives to summon so necessary and vital a witness as Pervez Musharraf. But this Judge finds that it was the "approver Aminullah Choudhary (who) had taken over the control of the aircraft through ATC and Radar Control by issuing an unlawful order".

Since the DG, CAA is under the authority of the Defence Ministry and Nawaz Sharif had given orders as Defence Minister, he was responsible not only for the hijacking but for all the steps Aminullah took in pursuance of the order; for instance, blocking t he runways at the Karachi airport.

Both the international treaties on hijacking require the offender's presence "on board" the aircraft. The 1963 Tokyo Convention on Offences and Certain other Acts committed on Board Aircraft (Article 1(2)) and the 1970 The Hague convention for the suppre ssion of Unlawful Seizure of Aircraft (Article 1). The 1971 Montreal Convention for the Suppression of Unlawful Acts against the safety of civil aviation lists (Article 1) five acts which would constitute an offence. Sharif's order, even as alleged, woul d not fall within any of them.

The governing provision is Section 402-B of the Pakistan Penal Code. It says: "Whoever unlawfully, by the use or show of force or by threats of any kind, seizes, or exercises control of an aircraft, is said to commit hijacking." It cannot possibly be sai d that Nawaz Sharif himself used or made a show of force or uttered "threats of any kind", nor did he seize or exercise "control" over PK-805.

But the DG, CAA blocked the runways, forcibly and unlawfully, and this act of his is fathered on the Prime Minister by making them conspirators. Section 10 of the Indian Evidence Act, 1872 says that once a conspiracy is established "anything said, done o r written by any one of such persons in reference to their common intention... is a relevant fact as against each of the persons believed to be so conspiring..." This is replaced by Article 23 of the Qanun-e-Shahadut Order, 1984 made by Zia-ul-Haq's regi me. But it requires prior proof of a conspiracy for the drastic results of an agency to follow. Section 120-A of the Penal Code defines criminal conspiracy: "When two or more persons agree to do ..." Agreement is the gist of the offence. A mere order to a subordinate to do an unlawful act makes him an abettor if he obeys the order, but not a conspirator.

The Judge holds that "all the actions taken by approver Aminullah Choudhary would be binding upon the accused Mian Muhammad Nawaz Sharif in the same manner as in the case of principal and agent and also through common intention." However, he held the ver y opposite while acquitting the Chairman of the PIA, Shahid Khaqan Abbasi - the parallel track in the "hijacking". For, as an employee of the PIA, the pilot was as amenable to the control of the PIA chief as he was to the DG, CAA, acting through the ATC. Nawaz Sharif had contacted both, Abbasi and Choudhari, simultaneously. Choudhari, in turn, contacted Abbasi. The trio acted in concert, the Prime Minister ordering the other two. But this Judge holds: "it is clear that the accused Shahid Khaqan Abbasi < I>had only received directions from accused Mian Muhammad Nawaz Sharifabout the diversion of plane in question to Muscat. Only P. W. Zahid has further given evidence by which it is tried to show that accused Shahid Khaqan Abbasi in pursuance of the s aid directions had done some act by which he made arrangements of refuelling the aircraft at the Nawabshah airport.'' Surely, if Abbasi is not regarded as a conspirator affected by Aminullah Choudhari's misdeeds but simply as one who "had only received d irections" from the Prime Minister, so had Choudhari.

The inconsistency does not end there. Jafferi rejects charges against Shabaz Sharif, Saifur Rehman and Muhammad Saeed Mehdi because he found the evidence of three witnesses who deposed against them unreliable. They were Muhammad Asif, the Prime Minister' s telephone operator; Zahid Mehmood, his Protocol Officer, and Brigadier Javed Iqbal, his Military Secretary. All three were found improving their stories. Their testimony in respect of Nawaz Sharif was readily accepted, nonetheless.

"It is manifest that the involvement of accused Mian Muhammad Nawaz Sharif is based on the evidence of approver Aminullah Choudhary." The law is clear. An approver is a confessed criminal whose evidence must be corroborated on "material particulars" and by independent evidence. One accomplice cannot corroborate another. "It is proved that there was telephonic conversation between accused Mian Muhammad Nawaz Sharif and approver Aminullah Choudahry. What was the conversation? For that we have to rely upon the statement of approver and his subsequent actions... to ascertain the true intent of conversation." That is inferred entirely from Choudhary's own actions for which Sharif is vicariously held responsible by branding the two as "conspirators".

Choudhary had in open court complained of duress, a fact broadcast by the British Broadcasting Corporation in its South Asia Service. He was taken into custody on the night of October 12-13 and was under house arrest for one month. He did not apply for p ardon then. He made a statement before the Army's Board of Inquiry on October 24. It was not produced in the court. He was first produced before the court on November 15 and remanded to police custody until November 18. Choudhary was next produced before the court for further remand on November 19 when his lawyer made an application in which it was stated that "from 15-11-1999 until late the above-named accused persons had been subjected to acute torture with the result that the accused had under gone acute mental... and agonies which had adversely affected his health, therefore, he prayed that the accused may be referred to a psychiatrist; otherwise he may die because of shock."

On this application, the court passed orders that he may be referred to a psychiatrist. A further police remand was granted up to November 22. On that day all the accused, along with approver, were produced in the court. On November 23, he asked f or grant of pardon at 10-30 a.m. The application was received by the Judicial Magistrate at 2-30 p.m. Pardon followed swiftly an hour later. The "psychiatric treatment" was very successful.

Jafferi is unfazed. Since the complaint made on November 19 was not repeated on November 22, when Choudhary again appeared before the court, ''it appears that whatever complaint the approver Aminullah Choudhary had, was overcome by him. The approver Amin ullah Choudhary was a heart patient and when he was in police custody he must have been disturbed. But up to 23-11-1999, he had not shown any intention to become an approver and when he was remanded to judicial custody and on the next date he moved an ap plication to the District Magistrate." On the sole testimony of such a person a man was sentenced to imprisonment for life.

The first information report was filed a month later on November 10, not by any of the 198 passengers or the pilot, but by one Lt. Col. Atiquz Zaman Kiyani, Protocol Officer with the Army Headquarters, Karachi. Addressing the Court on March 24, the leadi ng defence counsel, Khwaja Sultan Ahmed, one of Pakistan's foremost lawyers, said that the FIR was written in the FIR book by the complainant himself and remarked: "It is the first case I have come across in my legal practice of 47 years that the first i nformer has written the FIR in the FIR register." It is normally recorded by a police official.

THE trial was preceded by a trial by the Army's "Board of Inquiry" which recorded the statements of witnesses while they were in army custody. They were released only after their statements were recorded - thus shaping their testimony to the court on des ired lines well in advance. This alone suffices to vitiate the entire trial.

The Judge is unconcerned. His apologia is shocking in its insensitivity to the norms of a fair trial: "On 12-10-1999, after 4-30 p.m. the situation in the country started becoming abnormal which resulted in the commission of this offence and taking over the country by the army with the result that several persons were taken into custody who were connected or unconnected with any matter. In such type of situation it usually happens that the persons are taken into custody. It is not abnormal thing. Therefore, keeping in view the condition prevailing at that time even if it is presumed that the witnesses were in custody, though, they had denied the said facts and some of the witnesses were performing their duties regularly and some of them have sta ted that they were on leave and some of the witnesses for whom it was alleged in the newspapers that they were in custody, but the fact remains that they appeared before the court, they took oath and gave statement in the court by disclosing whatever the y wanted to say in their statements. The statement before this court is to be considered which is given on oath. As such, no adverse inference can be taken in this case, particularly, in the peculiar circumstances of the case."

And it is in respect of such a trial that Angela Pathak of Amnesty International (AI) merrily pronounced in Islamabad that it was "fairly fair". Never before in all its history had any AI spokesperson spoken with such a blend of incompetence and irrespon sibility.

The spools and the black box were not proved in court by the prosecution, as the Judge himself records. "In the black box viz. DFDR, CVR, PMR and spools, some conversation are recorded between the cockpit of PK-805 and Radar Control and ATC and between R adar Control and ATC and between Director General CAA Aminullah Choudhary and Radio Control and ATC. These articles have been produced by the prosecution as articles A to H, but no efforts have been made to prove these articles in accordance with law. Th e as articles A to C, viz. DFDR, PMR, and CVR, were produced by Mashir Nazir Ahmed which were secured from the security officer PIA from his almirah. These articles were fitted in the aircraft but no evidence has been led by the prosecution to show that before whom these articles were secured from the aircraft. The connection of these articles with the aircraft has to be made, but no such efforts have been made by the prosecution to connect these articles with the aircraft. As such, without the r equired proof, they cannot be relied upon, nor they can be used for any purpose.

"As regards the spools article D to H are concerned, these have also not been proved that they were secured from Radar Control or ATC tower but they were simply produced before the SHO at the police station. The spools contained voices of certain pers ons. Those voices have also not been got identified by the prosecution, though, the witnesses were present in the court."

Khwaja Sultan Ahmed rightly asked: "How can the prosecution say that the black box was blank when they had already deposed that no facility was available in Pakistan to reproduce the recording of the black box?" On the spools and their transcripts, he ar gued that the spools were taken in possession and sealed by the prosecution on November 25, while the transcript, made out of the audio cassette of the spools' recording, were prepared on December 3. He asked how the prosecution made the transcripts when the spools were sealed. Video cassettes of the closed circuit TV at the airport were withheld. The flight log book, which could have proved the actual fuel position of the aircraft and is maintained by the pilot or the flight engineer, was produc ed by a despatcher. ''Even when the Captain Sarwat was being examined who was the only person who had written Ex. 69, has not been shown this document nor it has been produced through this witness. Even after production of this document the prosecution c ould have recalled the Captain Sarwat, to have examined him to prove Ex. 69 but no such efforts have been made by the prosecution to prove this document". This is the Judge's observation.

A REMARKABLE array of independent documentary evidence was deliberately not proved before the court by the prosecution. The Judge notes all that; yet, carefully refrains from drawing an adverse inference against the prosecution as the law of evidence cle arly enjoins him. There is on the other hand a snide reference to the accused for not stepping into the witness box "in spite of giving them opportunity to do so". Much evidence was let in on the understanding that other evidence would be produced to mak e it admissible in law. It was not.

All in all, a wild charge is made against a Prime Minister ousted in an army coup on the strength of the testimony of an approver who openly alleged coercion. That testimony, even if accepted, cannot establish the offence of hijacking. Material evidence is withheld by the prosecution. Double standards are applied by the Judge on the same set of witnessess. The trial proceeds in an atmosphere of tension and palpable fear. But, then, Nawaz Sharif had to be immobilised. It will take time and effort to prov e charges of corruption against him. Meanwhile, the trumped up charge of hijacking can accomplish the same result provided a Rahmat Hussain Jafferi acts as he did. Nawaz Sharif is in the dock. But it is Pakistan's judiciary which is on trial.