PHC stopped from issuing orders in cases of military courts convicts

Updated May 14, 2020

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SC decision comes on federal govt’s plea against the Nov 2018 PHC order setting aside military courts’ convictions. — SC website/File
SC decision comes on federal govt’s plea against the Nov 2018 PHC order setting aside military courts’ convictions. — SC website/File

ISLAMABAD: The Sup­reme Court on Wednesday restrained the Peshawar High Court (PHC) from issuing interlocutory orders, which include grant of bail to appellants convicted by military courts on terrorism charges.

A two-judge Supreme Court bench comprising Justice Mushir Alam and Justice Qazi Mohammad Amin Ahmed asked the PHC that it could proceed on merits of the cases it was seized with, but should not issue any order piecemeal.

The directions came on the federal government’s plea through 71 appeals against the November 2018 order of the PHC that set aside military courts’ convictions.

The matter will be taken up again on Monday.

Attorney General for Pakistan Khalid Jawed Khan on Wednesday argued that PHC’s order gave rise to apprehensions that the high court was contemplating grant of interim bails to the convicts.

“These are not ordinary convicts but charged with committing terrorism by the military courts,” the AG argued, adding that a lot many people had sacrificed their lives to get these convicts behind bars and there was every apprehension that in case of bail, they might be enlarged.

The AG also highlighted that around 296 petitions were pending with the PHC against the convictions awarded by the military courts. He argued that different benches of the high court had taken varied and conflicting views. For this reason, he added, the federal government was seeking uniform directions to be followed by the high courts in such situations.

Though the court also issued notice to the respondents who were convicts in the case, it observed that serious questions of the jurisdiction of the high court was under consideration of the Supreme Court, therefore, in these circumstances piece meal orders by the high court was not conducive.

While dictating the order, Justice Alam observed that it was the duty of the high court to do justice and the apex court had no cavil if the cases were decided by the PHC on merits. He also made it clear that the Supreme Court would not encourage a bad precedence to emerge that may load the apex court with petitions seeking restraining orders against the high courts in every other case.

The AG, however, referring to the Khyber Pakhtunkhwa Workers Welfare Board case, said the Supreme Court had restrained the PHC to proceed with the matter until the cases with which the apex court was seized with was not exhausted. Also, he said, the SC had partly heard the federal government in the military court conviction matter.

During the hearing, Justice Amin observed that it was the constitutional duty of the high court to do justice and the Supreme Court could not restrain them by issuing an omnibus order. The federal government had the remedy available to come in appeal in case the high court concluded that the conviction awarded by the military courts were not sustainable, Justice Amin observed, adding it was difficult for the apex court to bar a high court from proceeding with a matter in exercise of its constitutional jurisdiction.

Justice Amin said at times miscarriage of justice was done or the ends of justice were not met but for these wrongs there were remedies. However, he observed, there was no remedy if the entire judicial system collapsed.

Through its November 2018 judgement, the PHC had ruled that the convictions by the military courts on the charges of terrorism were wrongful and were based on ill-will.

Earlier, the apex court had stayed the high court with a direction to the concerned jail superintendent to halt the release of the accused who had received different sentences, including death, in a number of cases.

In its 173-page judgement, the high court had rejected confessional statements of the convicts after highlighting flaws. The court also questioned whether the right to fair trial under Article 10-A of the Constitution was extended to the convicts or not.

The PHC had observed that the entire judicial confessional statements recorded in Urdu were ‘in one and the same handwriting and in one specific tone/style’.

Moreover, 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, the verdict had stated.

The perusal of the entire record in each and every case would show that none of the convicts 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 was no FIR or any authentic report of the Pata/ Fata authorities in this respect, the PHC had contended.

Published in Dawn, May 14th, 2020