ISLAMABAD: A Supreme Court bench requested the chief justice on Thursday to consider constituting a larger bench to find answers to questions it framed on May 15 while hearing the case of 35 prisoners who went missing from a military internment centre in Malakand.
A two-judge bench headed by Justice Jawwad S. Khawaja sent the request to Chief Justice Tassaduq Hussain Jillani when the attention of the court was drawn towards a number of missing persons’ cases that were pending before at least four other benches of the Supreme Court.
But before deciding to refer the case to the chief justice, the court examined a sealed envelope submitted by Attorney General (AG) Salman Aslam Butt on behalf of the defence ministry.
The contents of the envelope were not shared with the courtroom as the AG claimed they were secret papers. However, the court turned down the AG’s request for in-camera proceedings. “We are not inclined to in-camera proceedings because it leads to doubts and mistrust,” Justice Khawaja observed.
“We should be attempting to resolve the problems of the nation,” Justice Khawaja observed as he returned the confidential documents, which were instantly sealed by court associates and turned back over to the AG.
Legal observers said the documents might have had something to do with the fact that these proceedings were demoralising for forces fighting in areas where an operation against extremist militants was ongoing.
At the outset of the day, the AG recalled that the court had framed three questions that asked: when a person is accused of committing an offence under the Pakistan Penal Code (PPC) and that person is serving in the Pakistan Army, is it the ordinary criminal forum/courts set up under the Criminal Procedure Code (CrPC) that will try the offender or is it for the forums under the Pakistan Army Act (PAA) 1952 to try such an accused?
The court had further asked: whether ordinary criminal courts are obliged to accede to a request made by army authorities or is it within the discretion of the ordinary courts to determine whether or not to grant the request of army authorities to transfer the case to them.
Thirdly, the court had asked: Whether ordinary forums can exercise discretion in the matter of a request received from army authorities and what is the basis on which such a request should be considered and then allowed or declined.
The court formulated these questions after it was told that the Malakand district commissioner, at the request of the Swat general officer commanding (GOC), had transferred a case, the FIR for which was already registered, to army authorities.
Justice Khawaja observed that in order to ensure the uniform consideration of these questions, it may be appropriate to fix all such cases before a larger bench, adding that it was not possible to have two or three different legal opinions on similar issues.
The court ordered its office to place the matter before the chief justice during the course of the day for an appropriate order.
During Thursday’s proceedings, the counsel for the missing persons, Advocate Inamur Rahiem, informed the court about an order by Brigadier Ahmed Bilal to arrest Muhabbat Shah, the brother of missing person Yasin Shah, who was among the 35 individuals who were removed from the interment centre in Malakand.
The AG explained that the order was issued because Muhabbat Shah did not appear before the forum investigating the cases to record evidence.
Published in Dawn, June 6th, 2014