Supreme Court bench hearing govt’s PHC appeal dissolves

Two judges recuse themselves; case referred to CJ for formation of new bench

ISLAMABAD: In an interesting turn of events, two members of a Supreme Court bench on Tuesday recused themselves from hearing a government plea seeking to restrain the Peshawar High Court (PHC) from taking up appeals against orders of the military courts.

A bench presided by PHC Chief Justice Waqar Ahmad Seth is currently hearing appeals filed by 290 alleged militants and their facilitators convicted by the military courts that were formed in the wake of Dec 16, 2014 attack on a military run school in Peshawar.

The federal government had requested the PHC to form a larger bench on account of conflicting views of different benches on this matter. However, PHC chief justice did not accept the government plea.

Later, the government challenged the PHC order about rejection of its plea to form a larger bench in the apex court and requested the court to hear the case on priority.

The SC clubbed the matter with the government appeals against PHC’s earlier decision to set aside conviction of 73 people by the military court and a three-judge bench headed by Justice Mushir Alam and comprising Justice Mazhar Alam Miankhel and Justice Yahya Afridi took up the case on Tuesday.

However, at the onset of the hearing Justice Afridi said Justice Miankhel and he had been part of the PHC when it passed orders against convictions by the military courts and it was not appropriate for them to hear appeal against their own judgments.

Attorney General for Pakistan (AGP) Khalid Javed Khan said the matter was not just limited to formation of a larger PHC bench. The PHC is also hearing the convicts’ bails applications and a new crisis could emerge, if the court decided to grant bails to the militants

Justice Afridi said the government could file an appeal once the PHC issued and order. The AGP said it would be like restarting the entire legal process once again and requested the court to stray the PHC proceedings. The court, however, said it could not pass an order before the PHC heard the case.

The AGP then asked the court to request the chief justice of Pakistan on the same day (Tuesday) to form a new SC bench to hear the petition. The court accepted the request and ordered the SC office to refer the file for reformation of a new bench to the CJ without delay.

The PHC is hearing petitions filed against military court’s orders from time to time. The court has already granted interim relief and stayed executions of some convicts.

Most petitioners claimed that the convicts were taken into custody by the security forces several years ago before being kept incommunicado.

The petitioners said their relatives remained missing for years and they learned about their conviction through media reports. Some claimed they found their missing relatives in internment centres and the media later reported that they were sentenced to death by a military court.