PESHAWAR: A Peshawar High Court bench on Tuesday rejected the plea of the federal government to constitute a larger bench for hearing over 200 petitions against the conviction of suspected militants by military courts.

Chief Justice Waqar Ahmad Seth and Justice Abdul Shakoor heard scores of lawyers appearing for the petitioners and federal and Khyber Pakhtunkhwa governments over an application of the government seeking the formation of a larger bench to hear petitions insisting in the past, different division benches had given conflicting judgments.

The bench fixed Nov 26 for hearing into the petitions most of which have challenged death sentence awarded to petitioners or their close relatives.

PHC bench will hear over 200 petitions of convicts on 26th

The court has been conducting in-camera proceedings in the petitions related to military court convictions.

Advocate general Shumail Ahmad Butt appeared for the provincial government, while additional attorney general Qazi Babar Irshad and Aamir Jawed represented the federal government, including ministries of law and justice and defence.

Several lawyers, including Shabbir Hussain Gigyani, Ziaur Rehman Tajik, Arif Jan, Danyal Asad Chamkani, Barrister Amirullah Chamkani, Naveed Akhtar, Sajeed Afridi and others defended petitioners.

The representatives of the federal and KP governments contended that in the past, benches headed by then chief justices, Justice Mazhar Alam Miankhel and Justice Yahya Afridi, had upheld over 65 judgments of military courts and rejected several petitions against them.

They added that last year, a bench headed by current Chief Justice Waqar Seth had accepted around 75 petitions and thus, setting aside conviction in those cases by military courts.

The government representatives said the judgment was challenged in the Supreme Court, which had suspended it but the appeals had been pending decision since then.

They wondered if the bench would follow the judgment delivered last year or earlier. The government representatives requested the court to constitute a larger bench to decide the question.

They said the Supreme Court in its judgment regarding military courts had laid down certain parameters for a high court to entertain a petition against a military court judgment. They also added that the powers of the high court in that regard were very limited and could not be exercised in each and every case.

Lawyers for petitioners opposed the government’s plea saying the two-member bench was fully competent to hear petitions.

They said the Peshawar High Court’s rules had no concept of the formation of a larger bench over a party’s petition for hearing an issue.

The lawyers said under Section 429 of Code of Criminal Procedure, if there was a difference of opinion among members of a division bench, then the chief justice was empowered to assign the case to a referee judge.

The lawyers claimed that they had also pointed out the judgment of the International Court of Justice in the Indian spy KulbhushanJadhav case wherein the Pakistan government had relied on the last year’s high court judgment to set aside convictions by military courts in 75 cases.

They said the counsel for Pakistan had assured the international court that the high courts of Pakistan exercised the ‘effective review jurisdiction’, giving as an example the 2018 decision of the PHC.

The lawyers said Pakistan had adopted the stance that its domestic legal system provided for an established and defined process whereby the civil courts can undertake a substantive review of the decisions of military tribunals in order to ensure procedural fairness had been afforded to the accused.

They said the PHC had ruled that it had the legal mandate positively to interfere with decisions of military courts if the case of the prosecution was based firstly on lack of evidence, secondly on insufficient evidence, thirdly on absence of jurisdiction and finally on malice of facts and law.

Ziaur Rehman Tajik said under Section 3 of the Law Reports Act, 1875, judgments of other benches were not binding on a bench hearing a specific matter unless those judgments were reported in law digests.

He added that the earlier judgments of the high court, which the government representatives had been quoting, were not reported judgments, so they’re not binding on the current bench.

The petitions were filed against the sentences awarded by military courts from time to time. The court has already granted interim relief to the militancy convicts by staying their execution on different dates.

Published in Dawn, November 6th, 2019