View from the courtroom: Supreme Court set to decide fate of military courts convicts

Source: Published in Justice on Monday, December 14, 2015

WITH the first anniversary of Army Public School and College massacre round the corner, several developments have taken place in relation to the military courts set up after the passage of the Constitution (21st Amendment) Act 2015 and amendments made in the Pakistan Army Act, 1952 early this year.

The Supreme Court of Pakistan is set to decide the fate of two convicts of military courts who were sentenced to death and petitions of their mothers against their convictions were dismissed by the Peshawar High Court on Oct 14.

A two-member bench of the apex court comprising Justice Gulzar Ahmad and Justice Dost Mohammad Khan on Dec 7 suspended the sentences awarded to Haider Ali and Qari Zahir Gul and referred the matter to Chief Justice of Pakistan Anwar Zaheer Jamali for constituting a larger bench to decide the controversy. The bench had fixed Dec 16 for next hearing of the appeals.

Two other developments related to military courts also took place recently. The Peshawar High Court (PHC) on Dec 9, in the light of its earlier judgement delivered on Oct 14, also dismissed four other writ petitions filed against convictions of four militants by the military courts including two convicts Taj Mohammad and Attiqur Rehman, both accused of being involved in the APS killings. The two other convicts were Rab Nawaz and Qari Zubair, who were convicted on different charges of terrorism by the military courts.

In the second important development, four militants, sentenced to death by military courts on different charges including their involvement in the APS attack, were hanged to death in Kohat on Dec 2. These were the first executions of terrorists convicted by the military courts.

The said four executed convicts were identified as Hazrat Ali of Darra Adamkhel, Maulvi Abdul Salam of Peshawar, Mujeebur Rehman alias Najeebur Rehman and Sabeel alias Yahya hailing from Khyber Agency. They belonged to Tauheed Wal Jihad group, stated to be a splinter group of Tehreek-i-Taliban Pakistan.

The ISPR, media wing of Pakistan Army, had on Aug 13 made public their convictions.

The ISPR on Dec 8 again announced that Chief of Army Staff General Raheel Sharif had signed the death warrants of four other convicts namely Noor Saeed alias Hafiz Sahib, Murad Khan, Inayatullah, and Israruddin alias Abu Lais. No details were provided when and where they would be executed. So far the military courts have convicted 31 militants out of which 27 were sentenced to death.

The proceedings before the apex court have assumed importance as the outcome of the two appeals would also affect the other cases related to military courts.

The apex court had on Aug 3 validated the Constitution (21st Amendment) Act. In the said judgment, the court had also discussed the powers of judicial review of the high courts and Supreme Court in cases decided by military courts.

“During the course of proceedings, the learned Attorney General for Pakistan attempted to indicate that the selection and the transfer of case for trial by the Court Martial and the eventual orders passed and sentence awarded may be beyond the powers of Judicial Review of the High Courts and this Court. In this behalf, reference was made to the bar of jurisdiction contained in Article 199(3) of the Constitution. We are afraid that such is contrary to the settled law of the land as repeatedly annunciated by this Court,” the court had ruled in Para 167 of its judgment.

The Supreme Court also explained the situation wherein the high courts could exercise powers of judicial review. “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.”

The two appeals originating from the judgment of PHC are filed by Bacha Laiqa, the mother of Haider Ali, and Anwer Bibi, mother of Qari Zahir Gul.

Their convictions were made public by ISPR on April 2. The general allegations against them were their involvement in committing heinous offences relating to terrorism, men slaughtering, suicide bombing, kidnapping for ransom and colossal damage to life and property.

Appellant Bacha Laiqa has claimed that her son was a 10th grader at Malakand High School, Sersenai, Kabal tehsil in Swat when he was handed over to security forces by his family on Sept 21, 2009. She stated that his date of birth was Dec 1, 1994, and was below 15 when he was arrested. She claimed Haider Ali had appeared in ninth grade board examination and had obtained “A” grade.

Similarly, Anwer Bibi claimed that her son was an IDP and was a prayer leader at Jalozai camp. She claimed that Qari Zahir was taken into custody by security forces in April 2011 and later on they came to know that he was interned at an internment centre at Khar, Bajaur.

The high court had conducted in-camera proceedings of the writ petitions filed by the two appellants. Both the appellants claim that their sons were not provided with fair trial as they were even not provided counsels of their choice and provisions of the Army Act were also violated.

A two-member bench of the high court headed by its Chief Justice Mazhar Alam Miankhel had touched that objection in its judgment of Oct 14. The bench observed: Though the accused were defended by an army officer friend (of the accused) and not by a proper defence counsel yet there is nothing on the record that any such request of the accused for proper defence counsel was made and turned down. So apparently, there has been no violation of the fundamental right of the accused to be defended by a counsel of their choice.”

About the claim that the convict Haider Ali is a juvenile offender, the bench had ruled “although the learned counsel for petitioners stated that one of the accused is a minor, yet overriding effect has been given to the amendments made in the Pakistan Army Act over any other law for the time being in force and that the record made available does not reflect the fact that convict Haider Ali was minor at the time of commission of offences, he is charged with, rather it appears to be an attempt by the petitioner to get some relief.”