PESHAWAR: The Peshawar High Court (PHC) on Saturday ruled that individuals convicted by military courts were entitled to file writ petitions in high courts, rejecting the federal government’s objections regarding the maintainability of such petitions.
A two-member bench comprising Justice Wiqar Ahmad and Justice Sadiq Ali Memon issued a written order, clarifying that convictions handed down by military courts can be challenged in the relevant high courts.
The ruling came in response to a writ petition filed by Adnan, a resident of Mardan, and others, who contended that they were not involved in the events of May 9, 2023, in Mardan city. They claimed that despite no involvement in the protests following the arrest of the Pakistan Tehreek-e-Insaf (PTI) founding chairman, an FIR was registered against them and they were later handed over to a military court, while other co-accused faced trial in an anti-terrorism court.
During the proceedings, the deputy attorney general objected to the maintainability of the petition, arguing that the petitioners had access to an alternate appellate forum and failed to approach it within the stipulated time. As such, the federal government argued, the writ petition was time-barred.
In response, the petitioners’ counsel, Barrister Amirullah Chamkani, contended that convicts can approach the high court, as affirmed in a short order by the Supreme Court of Pakistan. He further argued that the federal government had not amended the Army Act to establish proper appellate forums in line with the Supreme Court’s directive. Therefore, the limitation period for appeal would begin only after such amendments were made.
He added that the petitioners were unaware of the specific charges and the reasons behind their convictions, making it impossible for them to file an appeal in time. By the time they were informed, they were told their right to appeal had lapsed.
The high court, after hearing both parties, concluded that it could exercise its constitutional jurisdiction and could not turn a blind eye to its constitutional responsibilities.
The court emphasized that when no alternative remedy is available -- or when it becomes ineffective due to lapse of time -- filing a writ petition remains a valid legal option.
Referring to Brigadier Ali’s case, where several sections of the Army Act were challenged, the PHC noted that the principle of judicial oversight was already well established. Even the Supreme Court bench that upheld the trial of civilians under the Army Act had stated in its short order that convicts could approach high courts through writ petitions, it was a constitutional right.
The PHC also disposed of a related application in the case, where the petitioners complained that they were not provided any documents regarding their trial, including the charge sheets and copies of the decisions by the chief of army staff.
The court held that the petitioners had the right to access all such documents for their defence and directed that they be provided certified copies of all relevant material submitted in court by the federal government.
The court also noted that the federal government failed to demonstrate that any instruction was issued by the chief of army staff to withhold military court records from the accused.
However, the court acknowledged that the verdicts issued by the army chief could not be made public, although the rest of the trial record must be shared with the petitioners.
The judgment marks a significant development in the ongoing legal debate over civilian trials by military courts and the constitutional rights of the accused.