PHC postpones announcing decision in over 220 appeals against military court convictions

Peshawar High Court adjourns hearing till tomorrow

PESHAWAR: The Peshawar High Court on Tuesday postponed announcing decisions in over 220 appeals against military court convicts.

A two-member bench headed by PHC Chief Justice Waqar Ahmed Seth and comprising Justice Ijaz Anwar was scheduled to announce the verdict today.

However, Additional Attorney General Qazi Babar Irshad and Khyber Pakhtunkhwa Advocate General Shumail Ahmed Butt submitted written statement questioning the high court’s jurisdiction to hear appeals against military court decisions. Citing Article 199 (5) of the Consitution, they said the high court would be violating the Constitution if it announced the verdict.

The government’s counsel also argued that a defence ministry’s plea against a similar PHC verdict was being heard by the Supreme Court and sought an adjournment until the top court decides on the matter.

But Justice Seth noted that the appeals in PHC and the apex court were separate matters.

Meanwhile, a representative of the defence ministry lamented over absence of convicts’ counsel in hearings. He submitted records pertaining to the cases in review appeals.

The bench admitted the written arguments by the law officials and records by the defence ministry and adjourned the hearing till tomorrow.

It may be mentioned here that Additional Attorney General Sajid Ilyas Bhatti on Monday requested a top court’s bench hearing defence ministry’s plea against October 2018 decision acquitting 73 military court convicts, to restrain the high court from delivering justice today.

But the three-judge bench led by Justice Mushir Alam and comprising Justice Munib Akhtar and Justice Amin-ud-Din Khan had dismissed the requested, asserting that the apex court could not stop the high court from announcing verdict.

The PHC verdict authored by Justice Seth was also submitted by the Government of Pakistan as evidence that military court verdicts can be reviewed before an International Court of Justice bench – which let to Pakistan’s win in the Kulbhushan Jhadav case.



Constitution of Pakistan

Article 199:  Jurisdiction of High Court

(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law

(a) on the application of any aggrieved party, make an order

(i)  directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted  by law to do, or to do anything he is required by law to do; or

(ii)  declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or

(b) on the application of any  person, make an order

(i) directing that a person in custody within the territorial jurisdiction of the Court be brought  before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or

(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any  function in, or in relation to, any territory  within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.(2)  Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.

[(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.]

[(3A)] Omitted.²[(3B)] Omitted.²[(3C)] Omitted.

(4)  Where

(a)  an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and

(b)  the  making  of  an  interim  order  would  have  the  effect  of  prejudicing  or interfering     with   the   carrying   out   of   a    public     work    or   of       otherwise   being harmful to the public interest ³[or State property] or of impeding the assessment or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order

(i)  would not have such effect as aforesaid; or

(ii)  would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.

[(4A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, State property or assessment or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made: Provided that the matter shall be finally decided by the High Court within six months from the date on which the interim order is made.]

[(4B)] Omitted:

(5) In this Article, unless the context otherwise requires,

“person” includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan; and “prescribed law officer” means

(a)  in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and

(b)  in any other case, the Advocate-General for the Province in which the application is made.