ISLAMABAD: Objecting to the Dec 10 verdict of Supreme Court in the case of 35 missing persons, the ministry of defence has pleaded that holding the Pakistan Army responsible for enforced disappearances by the court would demoralise the troops engaged in combating terrorists in Swat and Malakand.

In a review petition, the ministry requested the apex court to revisit its verdict by accepting the contentions raised in the interest of Pakistan and the state and expunge all the findings, remarks and observations recorded against the army and its intelligence agencies.

The deletion of the observations and remarks should be done in such a manner as if these had never been incorporated in the judgment, the ministry emphasised.

On Dec 10 last year, a three-judge Supreme Court bench headed by former chief justice Iftikhar Muhammad Chaudhry declared that the army authorities had removed 35 persons from the Internment Centre in Malakand Garrison, out of whom only seven were produced before the court. The bench had also ordered that action be taken against the people responsible for the non-compliance of court orders.

The court had held that such practices were a serious crime against humanity.

Headed by Justice Jawwad S. Khawaja, a Supreme Court bench will also resume from Monday the proceedings in the missing Yasin Shah case on an application filed by his brother Muhabbat Shah on the basis of which the Dec 10 verdict had come.

The court at the last hearing on Jan 10 had ordered Secretary to the Prime Minister Javed Aslam to bring non-implementation of its judgment to the notice of his boss.

It also directed Chief Secretary of Khyber Pakhtunkhwa Mohammad Shahzad Arbab to inform Chief Minister Pervez Khattak about the non-compliance of the court order.

The review petition drafted by Additional Attorney General Shah Khawar highlights that the Supreme Court had failed to take into consideration that the armed forces were called in Swat and Malakand under Article 245 of the constitution to act in aid of the civil powers and to fight the worst form of terrorism in the area.

“And when the army is called to assist the civil authorities to carry out a constitutional duty, the jurisdiction of the high court as well as the fundamental rights guaranteed in the constitution are suspended.”

The judgment also entails, the petition argued, national as well as international implications and repercussions that could be detrimental to the federation of Pakistan.

Referring to the observations in the judgment that the army authorities in Pata (Provincially Administered Tribal Areas) removed 35 persons from the Malakand internment centre, out of which only seven persons were produced before the court, the petition contended that these remarks were not based on a conclusive material or evidence and relied upon by the court on “inaccurate particulars” provided by superintendent of the Malakand internment centre Attaullah when the defence ministry had clearly disputed the same for being unsubstantiated and factually incorrect.

The matter being disputed should have been termed a factual controversy by the court needing further probe but the defence ministry was not afforded any opportunity to cross examine and controvert the superintendent.

“Without proper assistance in this matter through a probe, the Pakistan Army should not have been held responsible for having detained these missing persons,” the petition said, adding that the court’s finding that those missing were with the armed forces was based on assumptions not supported by facts or record.

The petition also cited the observation in which the court had quoted an instance from the Nepal Supreme Court, which in a missing persons’ case on June 2007 had applied the principles enshrined in the convention against Enforced Disappearances 2007 despite the fact that Nepal had not ratified the same.