PESHAWAR: The Peshawar High Court has ruled that the recent terrorism convictions by the military courts in the province were wrongful and were based on ill-will and not evidence.
In its 173-page detailed judgment on the recently-accepted 75 petitions of military court convicts, a bench consisting of Chief Justice Waqar Ahmad Seth and Justice Lal Jan Khattak ruled that while exercising their power of judicial review in light of the judgments of the apex court, it accepted all petitions, set aside the impugned convictions and sentences, being based on malice in law and facts, and directed respondents, including federal and provincial governments, to free all convicts and internees if they’re not wanted in any other case(s).
“The way all convicts have been proceeded against right from their arrest in different parts of the country in the custody of the agencies and landing them in the internment centres for months/ years, are not appreciated at all for the purpose of convictions,” it ruled.
Issues detailed judgment on 75 petitions, rejects ‘confessional statements’ of terror convicts
After the end of three days marathon hearing on Oct 18, the court had accepted the petitions filed mostly by close relatives of the military court convicts majority of whom were sentenced to death on account of different acts of terrorism.
Issuing the detailed judgment, the bench rejected confessional statements of all convicts by elaborately discussing the flaws in them.
It also discussed whether the right to fair trial under Article 10-A of the Constitution was extended to the convicts.
The bench observed that the entire judicial confessional statements recorded in Urdu were ‘in one and the same handwriting and in one specific tone/style’.
“It is admitted at the bar that for Khyber Pakhtunkhwa there were in all three Field General Court Martial courts and each and every document on file would show that all the three courts were functioning on one and the same pattern not even a single accused has deviated differently to the questions put on him,” it pointed out.
The bench said the questions put to all accused were one and the same with exactly the same answers in all cases and even for the purpose of engaging private counsel, the same format would reflect there were planned proceedings in all the said three courts.
“It is observed from the record, so produced that they have erased each and every date, the names of the prosecution’s witnesses, their designations, and many other things.
“The perusal of entire record in each and every case would show that none of the convict was ever, by name mentioned or nominated in any of the report, so formulated or registered by the prosecution. In majority of the cases there is no FIR or any authentic report of the Pata/ Fata authorities in this respect,” it said.
The court ruled that even in the secret reports of the prosecution, army and intelligence agencies, no one had been named till the time, someone was arrested and he was shifted to the internment centre, where each and every one who had been arrested from anywhere in the down country was framed in a particular charge.
It added that after years of confinement, the arrested man was abruptly produced before the authorities for recording of confessional statements and that too in the same tone and language and then before the Field General Court Martial.
Pointing out flaws in the prosecution cases, the bench ruled that the proceedings after the arrest of each and every convict were exactly the same to a question where one of the convict had said ‘No’ or ‘Yes’ the same was up to the last convict.
“No one has deviated from the principle stand of the prosecution where under they are required to produce the evidence, recorded the confessional statement, except the grievance of private counsel nominated by the prosecution, etc. and finally the plead guilty statement.”
The bench ruled there was no witness to the occurrence or for the presence of the convicts, even the injured were never produced in any of the case reflecting that all the proceedings conducted by three such courts established, had a clear mindset.
“All cases, in view of the above facts and figures are cases of no evidence, if the alleged confessional statements are subtracted, pulled out of the entire proceedings. The alleged confessional statement with no independent advice after months/ years of confinement with military and internment centres is a manufactured story obtained and subscribed one, totally reflecting the intention to fill in the blanks, by way of untraced cases.”
The bench ruled in all those cases, the plea of the convicts was that confessional statements were recorded with unexplained delay and was a result of torture.
“We have before us the confessional statements of almost all the convicts and we appreciate with naked eye that all of them are recorded in one and the same handwriting. All these statements have thumb impressed by the accused/ convicts with no mention of identity card number, etc.”
The court ruled that these confessional statements were recorded after much delay from the date of arrest, confined in internment centre, when they were having no facility to meet their relatives even the parents and close blood relations.
Published in Dawn, November 2nd, 2018