ISLAMABAD: The Su­­p­reme Court office on Tu­­es­day returned a petition se­­eking to initiate conte­mpt of court proceedings agai­nst Secre­tary of Defe­n­­­ce re­­­­ti­red Lt Gen Ham­o­od-uz-Zaman Khan for all­e­­­gedly disregarding the Oct 23 un­­a­nimous decision of declaring the trial of 103 civilians identified in relation to their alleged invol­vement in the May 9 viole­nce as against the Constitution.

The SC Registrar’s Offi­­ce returned the petition mo­­­ved through senior co­unsel Faisal Siddiqui on behalf of Fahim Zaman Khan, Mahnaz Rahman, Prof Dr A.H. Nayyar and Syed Zulfiqar Hussain Gilani, due to ‘a number of deficiencies’ in it.

According to the registrar’s office the petition was being returned since the operation of the order being questioned was suspended on Dec 13 and, therefore, the present contempt of the court petition was not entertainable.

On Dec 13, the Supre­­me Court, by a majority of five to one, had suspended the operation of its Oct 23 short order that declared as unconstitutional the trial of 103 civilians identified in relation to their alleged involvement in the May 9 violence.

The court office expl­ai­ned that the petitioners have not sent the statem­e­­nt of allegations to the res­pondents as requi­red by Rule 4, Order 27 of the Su­­preme Court Rules, 1980. Consequently, the petition was returned along with the paper books for not being entertainable.

In the petition, the petit­ioners had argued that the alleged contemnor was a pa­­­­r­­ty to the proceedings be­­­f­ore the Supreme Court in which the trial of civili­a­­­ns by the military courts was challenged, pursuant to which Oct 23 judgment came.

The petition had regretted that the alleged conte­m­­nor was responsible for implementing the directi­ons issued on Oct 23, bec­ause the respondent contemnor heads the ministry of defence which has to be issued directions for the transfer of custody of persons.

But contrary to clear and unambiguous declarations of the court, the continuing detention with the military authorities of persons identified in the list provided to the Sup­r­e­­me Court amounts to un­­con­stitutional and illegal acts.

The petition further reminded that Oct 23 jud­gment had also declared as unconstitutional Sect­ions 2(1)(d)(i) and (ii) and Sec­tion 59(4) of the Pakistan Army Act, 1952, and had ordered that the civilians arrested in relation to May 9 and 10 events should be tried by criminal courts of competent jurisdiction established under the ordinary or special law.

This direction can only be complied with after the transfer of the custody of these civilians to the criminal courts of competent jurisdiction, the petition contended.

The petition reminded that multiple Intra-Court Appeals (ICA) against the Oct 23 order have been filed, but neither the number have been fixed to these ICAs by the registrar’s office at the moment nor they have been fixed for hearing.

Hence, the Oct 23 order is still in field and thus binding upon all parties, including the alleged contemnor. Moreover, it is also a settled law that until a stay is granted, mere filing of appeal does not automatically operate as a stay of the order by the court, the petition argued.

It has been more than 43 days since the passing of the Oct 23 order, but relatives and friends of the persons identified in the list provided to the Sup­reme Court say the custody of these individuals have not been transferred to the criminal court of competent jurisdiction and they are still in illegal detention or custody of the military authorities.

Published in Dawn, December 27th, 2023