Legal issues related to military courts set up after the 2014 Peshawar Army Public School carnage are still far from over. While those military courts ceased to exist after March 2019, the petitions originating against the convictions made by them have been pending before the Supreme Court and high courts.
Around 140 petitions filed against convictions by military courts have presently been pending before the Peshawar High Court. These petitions have now been in focus of legal fraternity after the death of then PHC chief justice Waqar Ahmad Seth last month.
Chief justice Seth was twice heading benches which had provided relief to the convicts of military courts while appeals against those judgments by the federal government have now been pending before the Supreme Court.
A bench headed by then chief justice Waqar Seth on Oct 18, 2018, accepted 75 other writ petitions of military court convicts and had set aside their convictions and sentences mostly including death penalties. Subsequently, the court on June 16, 2020, accepted 198 writ petitions filed mostly by close relatives of the military court convicts, majority of whom were sentenced to death or life imprisonment on account of different acts of terrorism.
The Supreme Court had suspended the said judgments of the high court of 2018 and 2020 over appeals filed by the government and the main appeals have still been pending. Similarly, several appeals filed by convicts, who were not provided relief by the high court earlier, have also been pending before the Supreme Court.
Recently, a PHC bench comprising Justice Lal Jan Khattak and Justice Mohammad Ibrahim Khan took up for hearing around 140 petitions on Dec 8 against military courts’ convictions. The bench had adjourned hearing of these cases to Jan 14, 2021, with the direction to the ministry of defence to produce record in these cases for perusal of the petitioners’ lawyers on Dec 12 and Dec 19.
Scores of lawyers, including Shabbr Hussain Gigyani, Arif Jan, Shakirullah Afridi and others, had appeared for the convicts.
Under the mechanism set up by the high court, copies of the record of the military courts are not provided to the convicts as well as their counsels and only the counsels are permitted to peruse the record in their relevant cases.
A counsel appearing in these cases said it was difficult for them to go through record in such a large number of cases in a short time. He said that the law point in all these cases was identical mostly related to so-called confessions made by the convicts and non-provision of counsel of their choice to the convicts during trial by the military courts.
The military courts were initially established after the passage of Constitution (Twenty-first Amendment) Act, 2015, for two years, in 2015, which expired on Jan 6, 2017.
In the light of the said constitutional amendment of 2015, The Pakistan Army (Amendment) Act, 2015, was also enacted for a period of two years. That Act 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 Constitution (Twenty-Third Amendment) Act, 2017, was enacted through which two-year extension was given to military courts for trying cases of terrorism. That amendment also lapsed on March 30, 2019.
Similarly, the amendments made in the Pakistan Army Act, 1952, through The Pakistan Army (Amendment) Act, 2017, for setting up of the military courts also ceased to exist after March 2019.
The Inter Services Public Relations had informed mediapersons in Jan 2019 that a total of 717 cases were referred for trials by the military courts during last four years of which 646 were disposed of. It was stated that 345 hardcore terrorists were sentenced to death of which 56 had been executed.
A total of 296 other convicts were sentenced to imprisonment of different terms whereas five of the accused were acquitted.
According to the said data, the conviction rate of military courts was 99.22 per cent. Majority of the convicts especially those facing death penalty had moved the superior courts.
Initially, the PHC did not provide relief to the convicts. However, the situation changed after chief justice Waqar Seth assumed office on June 28, 2018, as relief was provided to the said convicts on multiple grounds.
In its detailed judgments of acquitting the convicts, the benches headed by (late) Justice Seth had ruled that these cases of convictions were of no evidence and were based on malice in law and facts.
“The way all the convicts have been proceeded right from their arrest from 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,” the court had ruled.
The court had observed that the entire judicial confessional statements recorded in Urdu were in one and the same handwriting and in one specific tone/style.
On May 25, 2017, a bench headed by then chief justice Yahya Afridi (now judge of Supreme Court) had upheld convictions of 37 militants by the military courts, including 35 convicts facing death penalty.
One of the major arguments by the counsels of those convicts was about the mode and manner of the confessional statement recorded by these convicts. However, that bench had not accepted that argument.
Published in Dawn, December 21st, 2020