AG put on notice over challenge to military court ruling

The Sindh High Court on Monday issued notices to the attorney general of Pakistan on petitions filed by five convicts on death row in the Safoora Goth bus killing case who have challenged the ruling given in the case by a military court.

Saad Aziz, Tahir Hussain Minhas, Mohammad Azhar Ishrat, Hafiz Nasir Ahmed and Asadur Rehman were sentenced to death by the military court for killing as many as 45 persons of the Ismaili community and injuring several others on May 12, 2015.

The military court, however, did not prosecute three alleged facilitators – Naeem Sajid, Sultan Qamar Siddiqui and Hussain Omar Siddiqui – as the requisite nexus of their alleged offences based on religion or sect was not established to bring them with pale of the Pakistan Army Act. They maintained that the military authorities had sent back their cases with request to conduct their speedy trial under the anti-terrorism law.

Their counsel, Hashmat Habib, submitted his clients were tried before the military court, set up at the Malir Cantonment under the Army Act as part of the National Action plan.

He submitted that the petitioners were kept at the Karachi central prison, where they were provided with the appeal format to file it before the registrar of the Court of Appeals and the judge advocate-general of the Army General Headquarters. 

The counsel submitted that the appellants were informed that their appeals had been rejected on July 25, 2016. They moved their appeals in the Lahore High Court, which on October 3, 2016 were turned down on the matter of maintainability as the offence was committed and trial was conducted within the jurisdiction of the Sindh High Court.

He argued that the judgement passed by the military court was not maintainable in the eyes of law, as the petitioners could have not been in custody of the military authorities and tried under the Pakistan Army (Amendment Act (Act-II of 2015) or the Protection of Pakistan Act, 2014, which now stood expired, as the petitioners did not belong to any terrorist organisation, terrorist group using the name of religion, sect or raised arms or wage a war against Pakistan as decided by the joint investigation team. 

He contended that the petitioners were illegally tried and that too in the absence of a counsel in violation the Article 10-A of the Constitution, as they were also kept incommunicado during their trial and investigation. Thus their conviction is liable to the set aside, he added.

The lawyer claimed that the petitioners’ right to fair trial under the Article 10-A had also been violated. He added that the Supreme Court had also held in one case that an accused could be denied meeting with the family under the Note-7 appended to the Section 73 of the Pakistan Army Act. 

Advocate Hashmat Habib submitted that the SC had also remanded back petitions of many convicts, who had challenged their conviction and sentences by the military courts, to the relevant high courts. He pleaded the court to call the record and proceedings of the military court trial for its perusal. He also requested for setting aside the petitioners’ sentences and acquitting them of charges. The SHC’s division bench, headed by Justice Ahmed Ali M Sheikh, issued notices to the attorney general and others and called their comments on January 26.