ISLAMABAD: The Supreme Court office declined on Saturday to entertain a petition moved by the father of a convict believed to have been sentenced to death by a military court.
Zahir Shah, the father of Haider Ali who is said to have been convicted by a military court, had filed a petition before the Supreme Court on Aug 8. The petition sought orders for the authorities to provide the record of the trial court proceedings so that a proper appeal challenging the judgment of the military court could be filed either before the Supreme Court or the high court.
Advocate Zulfikar Ahmed Bhutta filed the petition before the Supreme Court on behalf of Mr Shah.
On Saturday, the Supreme Court registrar returned the plea to the petitioner on the grounds that he had not approached the high court concerned or any other appropriate forum available to him under the law for the same relief.
The office order also stated that the petitioner had failed to provide any justification why he approached the Supreme Court directly, instead of going to the lower courts first.
Moreover, the office order explained, the certificate provided by the petitioner does not fulfil the requirements of Rule 6 of Order 25 of Supreme Court Rules, 1980.
The rules state that an application for the enforcement of any other fundamental right under Article 184(3) of the Constitution will set out the name and description of the applicant, the relief sought, the grounds on which it is sought, and shall be accompanied by an affidavit verifying the facts relied on. The application will also state whether the applicant has moved the high court concerned for the same relief and, if so, with what result.
In his petition, Mr Shah pleaded that awarding a sentence and the non-provision of the case record was in sheer violation of Articles 4 (right of individuals to be dealt with in accordance with law) and 10A (right to fair trial) of the Constitution, which was not only against fundamental rights as guaranteed under the Constitution, but also against the natural law.
The denial of the right to appeal, revision or to seek any other legal remedy available to the accused against a conviction or capital punishment itself creates a cause of action against the authorities concerned, the petition pleaded.
The petition claimed that Haider Ali was arrested on Eidul Fitr, Sept 21, 2009, when he was 14 years old and a student in the 10th grade at the Malakand Public High School, Swat.
While dismissing petitions challenging the 21st amendments, a 17-judge full court of the Supreme Court, in a majority judgment, had reaffirmed that any order passed, decision taken or sentence awarded by the military courts will be subject to judicial review by the high courts and the Supreme Court on the grounds of being coram-non-judice, without jurisdiction or suffering from mala fides including malice in law.
Published in Dawn, August 23rd, 2015
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