The Peshawar High Court will again take up for hearing the case of a high-profile spokesman of Tehreek-i-Taliban Pakistan, Swat chapter, Muslim Khan, on June 1. However, in such cases so far scores of militants have failed to get any noteworthy relief from the superior courts.
Looking at the track record of Muslim Khan, who was known for accepting responsibility of almost every incident of terrorism in Malakand region when the militants were ruling those areas, getting any major relief from the courts by him appears to be an uphill task.
On May 28, a bench of the high court, headed by Chief Justice Yahya Afridi, upheld convictions of 39 militants by the military courts. While the bench maintained death sentences of 35 militants and life imprisonments of two others, it remanded to the trial court cases of two of the militants for re-deciding the quantum of sentence awarded to them.
In most of these cases the counsels appearing for the petitioners had raised objection about their non-access to the record of the military court leading to the impugned convictions. The high court bench has overruled that objection in the light of a judgment of the Supreme Court in a case “Said Zaman Khan versus Federation of Pakistan and Others (CP No 842 of 2016).
The bench ruled: “In view of the definite direction rendered by the Apex Court, this Court decided that the record and the proceedings should not be made open to public, and that the recorded proceedings leading to the impugned conviction should only be provided to the worthy counsel for the petitioner, and that too after due precautions are taken to ensure that the identity of the witnesses, Presiding Officers and the worthy counsel for the parties in the proceedings challenged before this Court, are not divulged or revealed.”
“As a further precautionary measure, the worthy Deputy Attorney General insisted that the copies of the written notes taken by the worthy counsel for the petitioner during the inspection of the record allowed by this Court be also provided to the prosecuting team. The same being not prejudicial to the defence of the convict was allowed.”
Similarly, the bench also overruled a major argument of the petitioners’ counsels about the mode and manner of the confession statement recorded by these convicts. In almost all the cases of convictions the ISPR has claimed that these convicts had admitted their guilt before the magistrate as well as the trial court.
The bench ruled: “No doubt, the challenge made to the mode, manner and the time of the confessions made by the accused, under the ordinary criminal jurisprudence would seriously diminish the evidentiary value thereof. But in view of the limited scope available to this constitutional Court in evaluating the evidence and the repeated admission of guilt by the accused convict does not warrant interference in the impugned conviction and sentence awarded by the Military Court.”
On May 24, the high court bench stayed execution of Muslim Khan over a writ petition filed by his wife Nida Bibi, who claims that her husband had not been given a fair trial which was guaranteed under Article 10-A of the Constitution. The court has summoned record of his case and will again take up for hearing the case on June 1.
His counsel has adopted almost the same arguments as advanced by counsels in earlier cases related to death penalties by the military courts.
A legal expert appearing in these cases believe that it would be difficult to impress the court through these arguments in such a high-profile case as even in earlier cases such arguments could not provide any final relief to the convicts. He said that at the most it could provide a brief respite to Muslim Khan as for the time being his execution was stayed and even after losing case in high court he would be having the option to file an appeal before the Supreme Court.
Muslim Khan belonged to TTP, Swat, an organization known for not recognizing the state and the Constitution. It is a strange twist of fate that his family members have now been trying to save his life by relying on fundamental rights enshrined in the same Constitution.
Following the setting up of a coalition government of Awami National Party and Pakistan Peoples Party in the province in 2008, it had entered into a peace deal with Swat Taliban after negotiations on May 21, 2008. Muslim Khan was also one of the five signatories of the said deal on behalf of the militants. Other four Taliban signatories were Maulana Mohammad Ameen, Ali Bukht, Mehmood Khan and Nisar Khan.
Muslim Khan and Mehmood were also members of the committee constituted for implementation of the said peace deal. However, that deal fell apart when the militants continued their activities and dozens of government buildings specially schools were blown up by them.
After the launching of decisive phase of a military operation in 2009 the Swat Taliban were uprooted from different parts of Malakand region, including Swat and Buner districts. In Sept 2009, the ISPR announced the arrest of Muslim Khan, Mehmood Khan and three other militant commanders. Both Muslim Khan and Mehmood were carrying head money of Rs10 million each.
For many years they were least heard of and finally the ISPR announced on Dec 28, 2016 that the Army Chief had confirmed death sentence awarded to Muslim Khan by a military court.
The ISPR claimed that he was involved in killing of innocent civilians, attacking armed forces and law enforcement agencies, which resulted in death of 31 persons, including Inspector Sher Ali of police, and injuries to 69 others. He was also involved in kidnapping of two Chinese engineers for ransom and slaughtering of four army officers.
Mehmood Khan was also convicted and sentenced to 20 years rigorous imprisonment on account of his involvement in kidnapping a Chinese engineer for ransom.
These military courts were initially established for a period of two years after the passage of the Constitution (Twenty-first Amendment) Act, 2015, for trying terrorists attached with militant outfits using the name of religion or sect.
Published in Dawn, May 29th, 2017