Military court death convict moves SC

ISLAMABAD: Taking the advantage of remedy given recently by the Supreme Court (SC) subjecting the sentences awarded by the military courts to judicial review, a young death row prisoner of scenic valley of Swat knocked the door of the apex court for getting legal remedy.
Haider Ali, 20, who was sentenced to death by the military court, Swat moved the Supreme Court in lieu of its recent remedy given to such accused pertaining to judicial review either through high courts or its own jurisdiction.
The Supreme Court, the other day, upheld the establishment of military courts, formed under the 21st Constitutional Amendment after dismissing identical petitions filed against it.However, it ruled that the decision to select, refer or transfer the case of any accused person for trial under the Pakistan Army Act, 1952, as amended is subject to judicial review both by the High Courts and by this court inter alia on the grounds of coram-non-judic, being without jurisdiction or suffering from mala fides including malice in law.
The court had further ruled that any order passed, decision taken or sentence awarded under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act 2015 are also subject to judicial review by the High Courts and the Supreme Court on the grounds of being coram-non-judice, being without jurisdiction or suffering from mala fides including malice in law.
Haider Ali, a 20-year-old death row prisoner was the first one who knocked the door of the apex court while taking the advantage of its ruling in the recent judgment.Zahir Shah, father of Haider Ali will file a petition today (Saturday) in the Supreme Court under Article 184(3) of the Constitution through advocate Zulifiqar Ahmed Bhutta.
The petitioner has made Federation of Pakistan through Secretary Defence, Rawalpindi, GOC Malakand Division at Khwazakhela, Swat, In charge Interment Centre at Paithom, Guilibagh, District Swat, government of Khyber Pukhtunkhwa through Secretary Home and Tribal Affairs, Civil Secretariat, Peshawar, Inspector General Prisons, government of Khyber Pukhtunkhwa and Superintendent District Jail Timergera, Lower Dir as respondents.
The petitioner prayed the apex court to direct the respondents to provide him copy of all the necessary documents of proceedings pertaining to his son Haider Ali, who has been convicted and sentenced to death by the military court Swat so that he can file a petition in the High Court or Supreme Court of Pakistan against the judgment of the military courts.
The petitioner contended that his son Haider Ali at the time of his arrest on September 21, 2009, day of Eidul Fitr was about 14 years and eight months old (minor boy) and was a student of class 10th at Malakand Public School, Sirsani Kabbal, Swat.
He submitted that, at the demand of the military authorities at Swat, he was produced before the military authorities, where he was taken into custody and was shifted to some unknown place for investigation.
The father informed that after some time in the month of Ramazan, he came to know that his son was confined in Central Jail, Timergara, Lower Dir.Later on, he said that he filed habeas corpus petition along with an application for interim relief, before the learned Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat and the learned High Court as an interim relief allowed him and his relatives to meet the detainee wherein he came to know that his detained son had been convicted and sentenced to death by the military court, Swat.
The petitioner contended that after coming to know about the death sentence of his son, he tried his level best to get the copies of the proceedings as well as judgment of the military court for the purpose of challenging his son conviction but failed due to non-availability of required court documents.
“It is troubling situation that the he has been deprived of getting the record of the case as well as judgment of the military court for the purpose of filling appeal or taking legal remedy”, the aggrieved father contended.
He submitted that this exercise on the part of military authorities was not supported by any of the existing civil or military law but sheer violation of Article 4 and 10-A of the Constitution wherein not only fundamental right guaranteed under the constitution but is natural law as no authority in the world can claim to go beyond the boundary of the law as well as cannot claim to conduct cases of prisoners in violation of law as well as in unjustified manners.
The petitioner said that the recent judgment passed in Constitutional petitions, legal right of the accused to file petition against illegalities of the military courts under 21st Amendment are not prohibited, although the fact is that by avoiding to deliver necessary copies of documents to the convict or his authorised persons is departure from fundamental right of the convict to be dealt with in accordance with law and is also against Article 10-A of the Constitution which guarantees fair trial.
Moreover, the petitioner contended that Article 10-A of the Constitution which ensure justified trial is equally applicable upon the military courts as he said that at the time of addition of Article 10-A it was not specifically mentioned anywhere in the Constitution of Pakistan that the benefit of this added Article will not apply upon the cases which are pending adjudication or decided by the military courts.
He prayed to the apex court that the respondents may be directed to provide him copy of all necessary documents of proceedings for the purpose of filing appeal or any petition in the High Court or Supreme Court against the judgment of military court for legal remedy.