ISLAMABAD: A few weeks after the Supreme Court’s upholding of death sentences awarded to 16 convicts by military courts, two of the convicts have moved petitions seeking review of the Aug 29 judgement.

One petition before the Supreme Court under Article 188 of the Constitution was filed by Sher Alam through rights activist Asma Jahangir and the other by Aqsan Mehboob through Advocate retired Col Malik Muhammad Akram with a fresh pleading to set aside convictions of the appellants.

On Aug 29, a five-judge Supreme Court bench, headed by Chief Justice Anwar Zaheer Jamali, had announced its judgement rejecting appeals by 16 convicts, including Ajab Gul, Fazal Ghaffar, Mohammad Ghauri, Tahir Mehmood, Alf Khan, Fateh Mohammad Khan, Qari Zubair, Sher Alam, Aqsan Mehboob, Mohammad Arabi, Haider Ali, Qari Zahir Gul, Atiqur Rehman, Taj Mohammad alias Rizwan and Faez Zaman Khan.

In his review petition, Sher Alam pleaded that the Aug 29 judgement had presumed guilt and thus taken away the basic guarantee of the due process during trial even in military courts and had travelled beyond the 21st Constitution Amend­ment and the Pakistan Army (Amendment) Act (PAA), 2015.

Aqsan Mehboob also pleaded that constant reluctance was shown to provide a copy of the Field General Court Martial trial proceedings to the appellant.

Asma Jahangir contended that though the PAA and the 21st Amendment were protected, the Constitution did not oust the application of fundamental rights while trying civilians in military courts. The Supreme Court did not address the argument that the convicts had been arrested many years ago under the Action (in Aid of Civil Power) Regulations 2002, which was also challenged as being ultra vires of the Constitution before the apex court that partly heard the matter.

The adjudication of the case was necessary before the military trials of the convicts, the petition explained.

It went on to say that the court had ignored the fact that the convicts were allegedly kept incommunicado and under arbitrary detention before trying and convicting them in the military courts. This amounted to malice, the petition said.

The judgement, the review petition emphasised, erred in presuming that services of the legal counsel were refused by the victim whereas it had nowhere been denied that even family members were not given intimation of whereabouts of the convicts and they met only (if at all) through the intervention of the courts.

The judgement also ignored the fact that record of the trial court was not disclosed to the counsel, the petition said, though admitting that the record was only shown to the legal counsel of the convicts after the intervention of the Supreme Court and the counsel were not allowed to take notes from of the records.

The Supreme Court failed to realise that access to the prisoner, his records and even the fact that the trial took place (if at all) was kept a well-guarded secret, the petition said.

It argued that the judgement also overlooked the fact that even under the PAA, a counsel was defined as a person to be properly qualified and was a legal practitioner authorised to practise with the right of audience in a court of session.

The verdict erred in considering whether the confession relied upon was ever made before a magistrate as the statement did not appear in the record seen by the counsel of the convict, the petition said.

It also ignored considering that the confession had been made (if at all) after many years of illegal detention and isolation and under duress and was thus not made in a voluntary manner.

Published in Dawn, September 28th, 2016