ISLAMABAD, March 6: The Supreme Court overturned on Wednesday a verdict handed down by a military court of appeal which had enhanced the sentence of two civilian convicts to capital punishment for their alleged involvement in the Dec 25, 2003, attempt on the life of former president Pervez Musharraf in Rawalpindi.

“Once we are convinced that the order enhancing sentence is without jurisdiction and coram non judice, it cannot be allowed to hold the field,” Justice Ejaz Afzal Khan said in the judgment. “The error being patent on the face of the judgment requires correction for the ends of justice,” the ruling concluded.

On Feb 28, a bench comprising Chief Justice Iftikhar Muhammad Chaudhry, Justice Ejaz and Justice Sheikh Azmat Saeed had reserved its ruling on a review petition moved by Rana Mohammad Naveed and Ameer Sohail. Their punishments had been enhanced by the military court of appeal to death from life term and 20-years jail on July 21, 2005.

The convicts were represented before the apex court by Advocate Hashmat Habib. Advocate Mujeebur Rehman appeared on behalf of the defence ministry.

Initially seven civilians, an army man and four air force personnel had filed appeals before the Supreme Court. All were dismissed. They were arrested and charged under Section 31(d), read with Section 59 of the Pakistan Army Act, 1952, for instigating armed forces personnel to deviate from their allegiance to the government.

The verdict got a mixed reaction, especially from lawyers known for defending people convicted by the field general court martial (FGCM).

Advocate Col (retd) Inamul Raheem, who is pursuing the case of Brig (retd) Ali Khan, convicted for having links with a banned group, said the order had established that the army courts of appeal were not proper forums to deliver independent judgments.

How a death sentence confirmed by the army chief could be annulled by a junior officer heading a court of appeal by going against the order of his boss, he asked, adding that all the decisions by such forums were unjustified and illegal.

The Supreme Court decision, he said, had emphasised the need to reopen all the previous cases decided by the military courts during Gen (retd) Musharraf’s rule to determine whether they had been adjudicated while adhering strictly to the legal provisions.

Justice (retd) Tariq Mehmood, a former president of the Supreme Court Bar Association, however, was of the opinion that the verdict would not help much in entertaining similar cases in future till the court, in its detailed judgment, came out with a clear pronouncement on enhancing its jurisdiction to entertain petitions in which allegations of bypassing legal procedures were levelled.

“It will not open floodgates of litigation in the apex court,” he said, adding the circumstances in the case were unique.

His point of view was endorsed by Advocate Tariq Asad, who is representing Adiyala prisoners in the apex court.

“The ruling has once again proved that the judiciary always goes in accordance with the circumstances and situation of the day,” he said, claiming that since Gen (retd) Musharraf was no more in office and did not wield power, such a ruling had come.

The verdict said Article 199(3) of the Constitution prohibited a high court from making an order in relation to a member of the armed forces or who was for the time being subject to any law relating to any of those forces but not when acts, actions or proceedings suffered from defect of jurisdiction.

Under Section 133-B of the Pakistan Army Act, the army court of appeal had the power to reduce or enhance the punishment, but this could only be done when there was an appeal before it in terms of the section, it said.

The ruling said an appeal against conviction or sentence could be filed before the court of appeal within 40 days from announcement of the finding or sentence.

The announcement of finding and award of sentence against the two convicts had been made on July 21, 2005, whereas the date of filing appeal in the case of Ameer Sohail was Sept 2, 2005, and of Rana Naveed Nov 26, 2005.

The appeals, the verdict said, quite obviously were time-barred. There were thus no appeals before the court of appeal in terms of Section 133-B of the act and that the enhancement of sentence could not have been made in a vacuum.

Such enhancement, the verdict said, was essentially against the principle of natural justice and Articles 4 (right of individuals to be dealt with in accordance with law) and 9 (security of person) of the Constitution.

Assuming for the sake of argument that there were appeals before the court of appeal, the sentence of imprisonment could not have been converted into that of death without giving an opportunity to the petitioners to show cause as to why their sentence should not be enhanced, it said. No such opportunity had been given to the petitioners, the verdict said, adding that in any case, they had to be informed whether they were being heard against conviction or for enhancement of sentence.

The sentence thus enhanced would be without jurisdiction and coram non judice and, therefore, it could not be sustained under any law and rules of propriety, the court said.