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Lal Masjid operation SC petitioned against formation of commission

December 14, 2012

ISLAMABAD, Dec 13: A citizen on Thursday petitioned the Supreme Court of Pakistan to withdraw its decision of appointing a one-man commission on the causes of the 2007 military operation in Lal Masjid.

Shahhid Orakzai in his petition contended that under its rules the apex court cannot appoint a fact-finding body in criminal matters.

On December 4, the Supreme Court appointed the commission consisting of Justice Shahzada Sheikh of the Federal Shariat Court. The commission was given 45 days to probe the causes that led to the clashes between security forces and the Lal Masjid people, the number and gender of those killed, whether the dead were identified and bodies handed to legal heirs and whether it was possible to fix responsibility against those behind the entire incident.

However, when Dawn approached legal experts to seek their opinions whether the petitioner was right in raising the question over formation of the commission, they expressed conflicting views.

Yasin Azad, a former president of the Supreme Court Bar Association (SCBA), said there was no harm or any legal hitch in the appointment of such a commission in criminal matters. Because the commission will point out who was responsible for the bloody operation, he said.

Senior lawyer Chaudhry Ramzan, who is also a member of the Pakistan Bar Council, said after the appointment of Dr Shoaib Suddle commission he did not think that a commission on criminal matters could not be appointed. The Suddle commission was formed to probe into the allegations of financial wrongdoing in a business deal between Dr Arsalan Iftikhar and property tycoon Malik Riaz.

Advocate Ahmed Raza Qasuri, however, observed that the petitioner was right since it was the first time in Pakistan’s judicial history that the commission was appointed to investigate the incident in the criminal side which otherwise was a prerogative of the police and the FIA.

Another senior lawyer on the condition of anonymity also agreed that under the Commission of Inquiry Act 1956, only the federal government could appoint such a body in criminal matters. He referred to the commissions formed to probe the May 2, 2011, Abbottabad incident and the murder of journalist Saleem Shahzad.

Mr Orakzai in his petition argued that the 11-day-long armed encounter between a unit of the Special Services Group (SSG) and an armed band led by Ghazi Abdur Rashid and his brother Maulana Abdul Aziz was not a civil matter for which the court could form a commission.

He stated that the order of the Supreme Court was not binding on Justice Shahzado Sheikh, because it does not “enunciate a law or lay down a principle of law” as emphasised by Order 32 of the Supreme Court Rules 1980. He said the court under its rules cannot issue a commission like a magistrate or a sessions court.

Quoting several articles of the constitution, he emphasised the independence of the FSC, saying no judge thereof could be asked to do an assignment outside his oath.

He added that he was the first to move the apex court on the Lal Masjid standoff in June 2007 but his petition was not heard.

On the contrary, the court took up an “anonymous petition” on the subject when there was no provision under the Supreme Court Rules for that.