ISLAMABAD: The Supreme Court is likely to explain what it meant by judicial review against the military court convictions which it held in a majority judgment while dismissing challenges against the 21st Amendment. A bench of the apex court is expected to consider the issue raised in a petition filed by the wife of a convict who was sentenced to death by a military court.

The petition, moved by Saleh Bibi, mother of five minor children, was earlier returned by the Supreme Court office on the grounds that she had approached the court directly instead of going through an appropriate forum. But it now stands cleared to be fixed for hearing by a bench.

“Justice Mian Saqib Nisar heard the matter in his chambers and after removing the objections ordered that the case be fixed before a bench of the court next week,” Advocate on Record Chaudhry Akhtar Ali told Dawn. Rights activist Asma Jehangir appeared before the judge on behalf of Saleh Bibi.

The petitioner requested the court to protect fundamental rights of her husband Qari Zahir Gul, alleging that he had been convicted by the military court illegally.

While dismissing the petitions challenging the 21st Amendment, a 17-judge full court, in a majority judgment, had reaffirmed that any order passed, decision taken or sentence awarded by military courts would be subject to judicial review by high courts and the Supreme Court on the grounds of being coram non judice, without jurisdiction or suffering from mala fides, including malice in law.

The petitioner said she was not fully aware of the details of allegations against her husband. Zahir Gul had been picked up by security forces on April 27, 2011, from an IDP camp and taken to an unknown place, she claimed.

She said people at the camp were of the opinion that since Gul had opposed the military authorities’ order to leave the camp and go back to their native village which was taken over by security forces, he was included in the list of people involved in terrorist activities.

She said that neither was any trial conducted in accordance with the law nor were witnesses produced. Gul was also not given an opportunity to cross-examine the witnesses. Similarly, neither was any document shown to him about his connection with the commission of the offence nor any opportunity afforded to rebut the allegations.

Citing the majority judgment in the 21st Amendment case, the petitioner argued that the selection of trial of Gul by the military court was coram non judice, completely devoid of justice and in conflict with the basic structure of the constitution.

“A person who has been tried by a military court is entitled to receive the order and copies of the trial,” she said, adding that the judgment in the 21st Amendment case had not extended unfettered powers to the military courts to adopt their own procedures and deny the accused any rights whatsoever.

Similarly, the application of law is retrospective since the accused was arrested in April 2011, whereas the 21st Amendment verdict was issued on Aug 5 this year.

The conviction and sentencing of Gul, the petitioner pleaded, was illegal and without any jurisdiction and, therefore, liable to be set aside since her, as well as her husband’s, fundamental rights had been damaged adversely, for the protection of which she had no other remedy except to invoke the constitutional jurisdiction of the apex court.

Saleh Bibi requested the court to stay the execution of her husband till a final adjudication of her petition. The apex court should also order the respondents to produce the proceedings and judgment of the military court before it for perusal and examination of the conviction.

She also requested the court to set Zahir Gul at liberty because the conviction was without any jurisdiction and retrospective in nature.

Published in Dawn October 1st, 2015

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