Top court: SC reserves judgment in military convicts’ cases

Attorneys of five petitioners argue their clients were denied fair trial

ISLAMABAD: The Supreme Court on Monday reserved its judgement on five appeals against death sentences announced by military courts.

The five-justice larger bench, headed by Chief Justice Anwar Zaheer Jamali, heard the cases of Qari Zubair, Sher Alam, Mohammad Arbi, Fateh Muhammad and Aksan Mehboob. Some 17 appeals of the convicts who have been awarded sentences by the military courts were listed in the apex court.

Asma Jahangir, the counsel for the convicts, pleaded the apex court that there has to be a retrial of all convicted persons after allowing them to engage counsels of their choice. The bench also expressed its dissatisfaction over the procedure adopted by the military courts for giving the right of counsel to an accused person.

The chief justice has already asked the additional attorney general that so far they (judges) are not satisfied by the submission of the record regarding the issue of engaging a counsel of choice by convicts. He said in some cases the question of providing a defence counsel was asked, but in many other cases it was not.

During Monday’s hearing, Asma Jahangir, appearing on behalf of the convict Sher Alam, complained that lawyers were not given access to the record of trial. She argued that they don’t know under what law her client was taken into custody and whether due course of law was provided. She said although under the 21st Amendment, army, naval and air force laws were given protection from civil scrutiny, this immunity does not arise in the Action in Aid of Civil Power Regulation-2011 under which the convict was initially arrested.

She again contended that people were illegally arrested under the regulation, and later the constitutional amendment was introduced to hide the illegally of security forces.

The noted human rights activist questioned: how did the federal government select cases of a few persons, who were in internment centres, and why did it not refer other cases to military courts? She said it was a violation of Article 25, Article 10A of the Constitution and rules 86, 87 of the PAA 1954.

She argued that the 21st Amendment and the Army (amendment) Act-2015 PAA did not undermine, suspend or curtail the effect of fundamental rights, guaranteed by the 1973 Constitution. She said Article 10A came into being after a long struggle and many negotiations.

She said there is the question of people’s lives. “Neither are we defending terrorism nor do we want to follow the principle that terrorism breeds terrorism.” Upon that Justice Azmat Saeed said: “We are sworn to defend the constitution.”

Jahangir said lawyers were not given access to the record of the trial of their clients. “I plead to show us the record.”

Justice Amir Hani Muslim asked the counsel that the petitioners had never challenged their pre-trial or their arrests, adding the petitioners before the court are under a very limited scope.

Khalid Afridi advocate, appearing on behalf of Qari Zubair, said his client was arrested from Esa Khel on August 16, 2009 by law-enforcement agencies but his family came to know about his death sentence through an ISPR statement in February 2016. Zubair was sentenced for his involvement in the mosque attack in Nowshera but Afridi contended that no FIR had been lodged against him.

Published in The Express Tribune, June 21^st, 2016.