ISLAMABAD: A special five-judge bench of the Supreme Court will be considering a set of questions regarding the prosecution of serving military officers, while hearing the case of 35 prisoners who went missing from a military internment centre in Malakand, from July 10.

At the last hearing on June 24, the bench headed by Chief Justice-designate Nasir-ul-Mulk had asked all provincial law officers to present their stance on the questions framed by a separate bench while hearing the case.

Legal observers are attaching great significance to the hearing against the backdrop of the passage of the Protection of Pakistan Bill, 2014, which seeks to provide safeguards to law-enforcement officers in the use of their powers to shoot a suspected terrorist on sight, bringing the remand period down from 90 days to 60, judicial oversight of internment camps and the right of appeal to high courts.

The major issues were categorised earlier by a two-member bench of the apex court headed by Justice Jawwad S. Khawaja, who, in a hearing on June 5, sent a request to former Chief Justice Tassaduq Hussain Jillani, asking for the formation of a larger bench for a decision on these important questions. This would also help resolve pending missing persons’ cases that were being heard by at least four other benches of the Supreme Court.

Questions in missing prisoners case to be taken up on July 10

In order to ensure uniform consideration of these questions, it may be appropriate that these cases be heard by a larger bench and all such matters be fixed before the same bench, Justice Khawaja had observed.

The questions framed by the court asked: “When a person serving in the Pakistan Army was accused of committing an offence under the Pakistan Penal Code, would an ordinary court set up under the Criminal Procedure Code (CrPC) try the accused or would a forum set up under Pakistan Army Act (PAA), 1952, frame the charges”.

Additionally, the court asked, “Whether an ordinary criminal court is obliged to accede to a request by army authorities to transfer the case to them after closing the matter or it is the discretion of the ordinary court to determine whether or not to grant the request of army authorities”.

Is the court not the ordinary forum to exercise discretion if such a request is received from the military authorities, the court inquired, asking what would be the basis on which such a request could be considered, granted or declined by an ordinary court?

The formulations came against the backdrop of the March 25 letter written by the Swat general commanding officer (GOC) to the Malakand district commissioner after the registration of an FIR against Naib Subedar Amanullah Baig and others posted at the Army Fort in Malakand. The FIR had been lodged on behalf of Defence Minister Khawaja Mohammad Asif at the Levy Post Malakand under Section 346 of the PPC.

Know more: SC rejects plea for trial under army act

The letter asked the DC to transfer the case papers to army authorities. Then the accused had not yet been arrested. On March 28 the DC replied to the GOC that the case had been closed and the documents had been dispatched to the army authorities.

Published in Dawn, July 6th, 2014