ISLAMABAD: The Supreme Court has referred to Chief Justice Gulzar Ahmed a set of appeals against the Nov 2018 Peshawar High Court (PHC) decision to acquit a number of convicts sentenced by the military courts, requesting the constitution of a larger bench.

Headed by Justice Mushir Alam, a two-judge bench referred the matter to the chief justice on Monday with an observation that such appeals should be heard by a three-judge bench.

The court was seized with over 70 appeals moved by the defence ministry against the PHC judgement, which had ruled that convictions by the military courts on charges of terrorism were wrongful and based on ill will.

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

Additional Attorney General (AAG) Sajid Ilyas Bhatti represented the defence ministry while Mohammad Arif and Laeq Ahmed Swati appeared on behalf of a number of convicts.

The government contended before the apex court that the Peshawar High Court had not taken an accurate view of the facts since the accused were involved in crimes like terrorism.

On the other hand, the defence lawyers argued that the apex court had stayed the operation of the PHC order even though acquittals by a high court were never stayed. They said the accused were behind bars for the last 18 months even after acquittal by the high court.

In Nov 2018, a two-judge PHC bench, comprising Chief Justice Waqar Ahmad Seth and Justice Lal Jan Khattak, had set aside the convictions on grounds of “malice in law and fact”.

The high court had also ordered the federal and provincial governments to free all convicts and interned persons, adding that their indefinite detention, including periods in custody of intelligence agencies, were “not appreciated at all for the purpose of convictions”.

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

The bench 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 the accused were one and the same, with exactly the same answers in all cases, and even for the purpose of engaging private counsel, the format was the same, the PHC bench had observed. This meant the proceedings in all the three courts were “planned”, the verdict had said.

A perusal of the entire record in each and every case showed that no convict was ever mentioned by name or nominated in any report formulated or registered by the prosecution, the bench added.

There is no FIR or any authentic report prepared by the authorities in either the former Federally Administered Tribal Areas (Fata) or in the provincially administered ones, the judgement had said.

Published in Dawn, March 3rd, 2020