The Peshawar High Court (PHC) on April 12 upheld conviction and death sentences awarded by military courts to six militants. The bench comprising Justice Waqar Ahmad Seth and Justice Syed Afsar Shah rejected writ petitions filed by relatives of the said six convicts challenging the respective orders of the military courts. Their counsels said they would move the Supreme Court as already several such cases are pending there.

Following the carnage of Army Public School (APS), Peshawar, on Dec 16, 2014 the Parliament had amended the Constitution of Pakistan through the Constitution (21st Amendment) Act, 2015 as well as Pakistan Army Act, 1952 thus paving the way for creation of military courts for trying terrorists belonging to any terrorist group or organisation using the name of religion.

So far these military courts have convicted 65 persons of which 62 were awarded capital punishment whereas the remaining three were sentenced to life imprisonment. Some of these convicts have already been executed in different prisons.

The Supreme Court had on Aug 3, 2015 validated the Constitution (21st Amendment) Act. The apex court in its detailed judgment had also explained the situation wherein the high courts could exercise powers of judicial review. “In view of the above, there can be no manner of doubt that it is a settled law that any order passed or sentence awarded by a Court Martial or other Forums under the Pakistan Army Act, 1952, included as amended by the Pakistan Army (Amendment) Act, 2015, is subject to the Judicial Review both by the High Courts and this Court, inter alia, on the ground of coram-non-judice, without jurisdiction or suffering from mala fides including malice in law. This would also hold true for any decision selecting or transferring a case for trial before a Court Martial.”

Following convictions by the military courts families of several of the convicts have tried their luck in the high court in light of the apex court judgment, but they failed to get any relief from the high court.

Initially, the high court dismissed writ petitions pertaining to conviction of two militants, Haider Ali and Qari Zahir Gul, on Oct 12, 2015. Haider Ali is stated to be a juvenile as at the time of his alleged arrest he was around 15.

Subsequently, the high court dismissed four other writ petitions filed against conviction of four militants on Dec 9, 2015. Two of those four convicts, Taj Mohammad and Attiqur Rehman, were accused of being involved in the APS incident. The other two, Rab Nawaz and Qari Zubair, were convicted on different charges of terrorism by the military courts.

In almost all these writ petitions the high court had conducted in-camera proceedings. Several of the appeals originating from the judgments of the high court are now pending before the Supreme Court.

The trials of the military courts’ convicts are shrouded in complete secrecy. Very little information is available about where these trials took place; whether the convicts were tried jointly or separately; what were the specific charges against them; when they were arrested by the security agencies; for how long they had remained in the custody of security forces; what kind of evidence was available against them; etc.

Last year, certain amendments were made in the Pakistan Army Act for providing protection to witnesses, president and members of the court, prosecutors and other persons concerned with court proceedings.

Section 2C was incorporated in the Army Act which provides: “The convening authority or the court constituted under this Act may, make such orders or take such measures, like sitting in-camera, not publishing the names of court officials etc, as it deems fit, within available resources, for the protection of witnesses, president, members, prosecutors, defending officers and other persons concerned in court proceedings for an offence under this Act, as may be prescribed.”

While the regular anti-terrorism courts continued to draw flak for low conviction rate of terrorists, the critics often ignored the other components of anti-terrorism regime in Pakistan, including prosecution, prevention and investigation.

Trials by military courts are conducted in secrecy, but no such facility is available to the ATCs. Information including judges of the ATCs, names of prosecutors, names and addresses of witnesses, place of trial, etc. are available to the accused terrorist facing trial.

Even for summoning of witnesses the ATCs are dependent on police and in terrorism-related cases witnesses are rarely turning up to testify against an accused person. An expert dealing with such cases said that there was no witness protection mechanism available in the country. He said that none of the governments had made amendments in Qanun-i- Shahadat, 1984 (Evidence Act) so as to make certain things admissible as evidence which were not part of the existing system.

He believed that if judges, prosecutors and witnesses were provided same facilities and protection, as provided to members of military courts, they had the capability to produce desired results.

While names of the presiding officers of military courts are kept secret the judges of anti-terrorism courts are known to all. Even the names of ATC judges and their places of postings are available on the website of the Peshawar High Court.

The Anti-Terrorism Act, 1997, provides for investigation by a joint investigation team, also including personnel of intelligence agencies, in cases of terrorism. However, that provision is optional. For improving quality of investigation that provision has to be made mandatory.

In 2014 the government made amendments to the ATA and added a provision for holding trials in prisons or through video link. However, that amendment has so far not been implemented and the judges have still been conducting trials in ordinary courts. Moreover, the government has so far not made corresponding amendments to the Code of Criminal Procedure under which the physical presence of a witness is mandatory during trial and his identity could not be kept secret.

As the timeframe provided for the functioning of the military courts is for two years, after a few months debate would start for giving further extension to these courts. Before any such debate starts the government should take steps for improving the functioning of the ATCs and make amendments in relevant laws.

Published in Dawn, April 18th, 2016