PESHAWAR: In a major setback to the government, the Peshawar High Court on Thursday set aside convictions of 74 suspected militants most of whom were sentenced by military courts to death in cases of terrorism.

A bench comprising Chief Justice Waqar Ahmad Seth and Justice Lal Jan Khattak pronounced a short order to allow 74 writ petitions mostly filed by close relatives of the convicts who claimed that the military courts had no jurisdiction to conduct trials of offences committed more than three years ago.

“The bench will release the detailed judgement later after which it could be ascertained on what legal grounds the bench has accepted these appeals,” said advocate Sahibzada Asadullah, who appeared for some of the convicts.

A detailed judgement will clarify whether the bench will suggest fresh trials by anti-terrorism courts or it has acquitted them

It will be clear after the release of the detailed judgement whether the bench will refer trials of the convicts afresh by anti-terrorism courts or had acquitted them.

Since the creation of military courts after the 2014 Army Public School carnage, the Inter Services Public Relations (ISPR) has been issuing press releases from time to time, revealing that scores of militants had been convicted on multiple charges.

In almost all cases the ISPR claimed that the convicts belonged to proscribed organisations and that they had confessed to their guilt before magistrates and trial courts.

The bench heard arguments in camera for three days following which the short order was announced.

Several lawyers, including Arif Jan, Shabir Hussain Gigyani, Sahibzada Asadullah, Ijaz Sabi, Malik Ajmal, Ziaur Rehman Tajik and Ghulam Nabi, appeared for petitioners.

Advocate Shabir Gigyani said that he had argued that there was a period of limitation on trials conducted by a court martial. He said that under Section 91 of Pakistan Army Act, 1952, no trial by court martial of any person for any offence should commence three years after the commission of that offence.

One of the convicts, Gul Faraz of Dir, was charged with facilitating a suicide bomber and taking him to Janazagah situated at Zargaranu Kalay Mardan in which then MPA Imran Mohmand and several others were martyred, while around 100 suffered injuries.

Shabir Gigysni said there was no evidence against his client and his confessional statement was recorded years after his arrest.

He pointed out that most of these convicts were tried by military courts many years after the alleged offences were committed and in some cases a decade had passed.

Izzat Khan’s counsel Arif Jan said his client had surrendered to the security forces on April 11, 2010, and since then he had been in their custody. He contended that his so-called confession was recorded several years after his arrest.

The ISPR had announced conviction of Izzat khan in May 2018 stating that he was involved in the killing of innocent civilians and attacking armed forces of Pakistan as well as Malakand University, which had resulted in the death of a civilian, four police officials and injuries to seven others.

The counsel for convicts mostly contended that their respective clients were not provided a fair trial and even not permitted to hire a counsel of their choice.

They contended that the convicts had no affiliation with any terrorist outfit and were falsely implicated in the cases.

Except some minor reliefs, in the past the high court had not provided any relief to these military court convicts and had been dismissing their petitions. On July 24 last year, a bench headed by then chief justice Yahya Afridi had upheld death sentences of 35 alleged militants.

Similarly, the Supreme Court had dismissed several of appeals originated out of judgments of different high courts in 2015. Several of the appeals and review petitions are pending before the apex court.

These military courts were initially set up under the Constitution (Twenty-first Amendment) Act, 2015, for trying terrorists attached with militant outfits using the name of religion or sect. The said law was enacted on Jan 7, 2015, for a period of two years.

In the light of the said constitutional amendment, the Pakistan Army (Amendment) Act, 2015, was also enacted the same day, which also provided wide-ranging offences in which the military courts were empowered to conduct trials, but it was limited to only those suspected terrorists claiming or known to belong to any terrorist group or organisation using the name of religion or a sect.

Subsequently, the tenure of military courts was extended for another two years by amending the Constitution in 2017.

Published in Dawn, October 19th, 2018

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