Juvenile offender? PHC suspends death sentence awarded by military court

Bench issues notices to interior ministry, civil and military officials

PESHAWAR:

The Peshawar High Court on Tuesday suspended the conviction of a man who was condemned to death by a military court in Khyber-Pakhtunkhwa. A two-judge bench — comprising Justice Musarat Hilali and Justice Younis Thaheem — stopped the execution of the convict, Haider Ali, till September 8 on a petition filed by his mother.

The bench directed the interior ministry, Malakand’s general officer commanding, K-P police chief for prisons and home and tribal affairs department’s secretary to submit written comments in response to the petition.

On April 16, the Supreme Court had stayed the execution of six convicted terrorists, Noor Saeed, Haider Ali, Murad Khan, Inayatullah, Israruddin and Qari Zahir, who were condemned to death by military courts on April 2. The stay was ordered because the top court was hearing petitions against the 21st constitutional amendment through which military courts were set up in the country.

However, a 17-member full bench of the apex court dismissed the petitions against the 21st constitutional amendment as well as 18th amendment, and subsequently the stay against the hangings of the convicts was also vacated.

Malik Muhammad Ajmal, the counsel for Ali’s mother Bacha Liaqa, informed the PHC bench on Tuesday that his client’s son was handed over to 24th Unit of Pakistan Army’s Baloch Regiment in Swat on September 21, 2009 by a local jirga. Ali was a 10th grade student at High School Sarsenai, Kabal, Swat, and his age at the time was 14 years and eight months, Ajmal said.

Ali remained missing for several months before his family came to know that he was in confinement in an interment centre in Timergarah after he had been condemned to death by a military court on June 27, 2015. “The family doesn’t know where he was tried, what were the charges against him and who were presented as witnesses by the prosecution? There is a jurisdiction problem and mala fide of law in the case,” Ajmal contended.

The petitioner submitted that in its detailed judgment on the 21st constitutional amendment the Supreme Court had ruled that the judgments of military courts were subject to judicial review on two grounds, jurisdictional error and mala fide of law.

Ali’s mother stated that her husband had also filed a petition under Article 184 sub-clause 3 of the Constitution in the Supreme Court seeking attested/unattested copies of the records pertaining to the conviction and sentence of his son as the same was requisitioned by the apex court during hearing of the petitions. However, on August 22 the top court refused to entertain the petition and returned it to the petitioner’s counsel.

In her petition before the PHC, Ali’s mother said as per the Juvenile Justice System Ordinance 2000 there was no death punishment for any crime committed by a juvenile nor a joint trial was allowed. “Only a juvenile court is competent to try any juvenile offender for any crime. In Ali’s case no such procedure was adopted by concerned authorities,” she added.

The court was requested to declare the military court proceedings void, without lawful authority and jurisdiction and direct the respondents to submit a complete charge sheet before the competent court which has jurisdiction in the matter for further proceedings.


Published in The Express Tribune, August 26^th, 2015.