• SC refers matter back to three-judge panel to form larger bench
• Directions sought for federal govt to place military court orders on record
• AGP says 20 suspects released before Eidul Fitr, counsel contends 85 still in prison
• Hafeezullah Niazi makes emotional plea for news of son’s whereabouts

ISLAMABAD: The Supreme Court on Wednesday once again referred a set of intra-court appeals (ICAs) back to the three-judge committee against an Oct 23 ruling, which had deemed the trials of civilians in military courts ‘illegal’.

The committee on formation of benches is now expected to form a larger bench to hear the case, as demanded by the counsel of different parties.

The last time this matter was referred to the committee was on Jan 29, when Justice Sardar Tariq Masood — now retired but heading the six-judge bench — acceded to the request of former chief justice Jawwad S. Khawaja.

Mr Khawaja is one of the parties in the matter and sought the reconstitution of the larger bench, consisting of senior-most judges, to decide appeals in the military court case.

Subsequently, the committee formed the present bench, which consists of Justice Aminud Din Khan, Justice Muhammad Ali Mazhar, Justice Syed Azhar Hasan Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali.

However, on Wednesday, to the bewilderment of some of the family members of the accused facing trial before the military courts who were sitting in Courtroom No. 4, the Supreme Court bench retired for the day with an observation that they were referring the case back to the committee.

This forced TV analyst Hafeezullah Niazi to approach the rostrum with folded hands and plead in a voice filled with emotion. He said he was not concerned whether it was a nine-judge bench or a six-member bench, his concerns were about the safety of his son, Hassan Niazi, who had allegedly gone missing from military custody and had not been heard of for several days now.

“The NAB law is considered draconian for having the provision to detain an acc­used for 90 days, but here our children are in phy­sical remand for the last eight to 10 months,” Mr Nia­zi regretted, saying that he could not sleep in at night since he was a father. “All I want is to become a party in the case,” he pleaded. Justice Moham­mad Ali Mazhar asked Attorney General Mans­oor Usman Awan to look into the matter.

Earlier, senior counsel Khwaja Ahmad Hosain, on behalf of former CJP Jaw­wad S. Khawaja, citing his fresh plea said a larger bench having not fewer than nine judges should be formed to hear the appeals in light of voices from within the SC.

The counsel also cited notes, authored by Jus­t­ices Syed Mansoor Ali Shah and Yahya Afridi, who had highlighted the need for a larger bench, adding that the potential ramifications demanded high level of judicial scrutiny. He argued that a larger bench would lend credibility to the present appeal process and to any pronouncement on whether civilians could be court-martialled by military courts.

Besides, the larger ben­ch is also necessary in view of any possible split in equal numbers, he said, referring to a letter by incumbent Chief Justice Qazi Faez Isa to then-Chief Justice Umar Ata Bandial, highlighting the constitution of a bench comprising junior judges to hear the same matter.

However, Justice Mazhar observed that the notes the counsel was relying on were mere observations, adding that Justice Afridi even joined the court proceedings till the end. Besides, Justice Isa’s letter had no relevance with the present case since it was not a judicial or a binding order.

AGP Awan told the court about the release of 20 people who were arrested for their involvement in the May 9 violence after undergoing the sentence awar­ded so that they could celebrate Eidul Fitr with their families.

At this, senior counsel Faisal Siddiqui requested the court to order the federal government to place on record the orders passed by the military trial court for the perusal of the apex court, adding that 85 accused were still under detention and therefore it required urgent hearing into the matter to decide their fate.

Justice Shahid Waheed also observed such orders should be placed before the court so that it could determine whether the requirements of Art­icle 10A, which ensures fair trial, were adhered to while deciding the matter of these individuals.

Published in Dawn, April 25th, 2024