ISLAMABAD: A special five-judge Supreme Court bench will consider on Tuesday a set of questions a different bench had framed while hearing the case of 35 prisoners who went missing from a military internment centre in Malakand.
Headed by Justice Nasirul Mulk, the larger bench comprises Justices Jawwad S. Khawaja, Anwar Zaheer Jamali, Mian Saqib Nisar and Asif Saeed Khosa. It will take up some 47 different cases of missing persons.
At the last hearing on June 5, a two-member bench headed by Justice Khawaja had sent a request to Chief Justice Tassaduq Hussain Jillani when his attention was drawn to the pendency of missing persons’ cases in at least four other benches of the Supreme Court.
In order to ensure uniform consideration of these questions, it may be appropriate that these cases be heard by a larger bench and all such matters be fixed before the same bench, Justice Khawaja had observed.
The court had framed three questions; when a person is accused of committing an offence under the Pakistan Penal Code and that person is serving in the Pakistan Army, is it the ordinary criminal forum/court set up under the Criminal Procedure Code that will try the offender or is it for the forums under the Pakistan Army Act (PAA) 1952 to try such an accused?
Likewise, the court further asked, whether the ordinary criminal courts (in the present case the courts at Malakand) are obliged to accede to the request made by the army authorities or is it within the discretion of the ordinary courts to determine whether or not to allow the request of the army authorities for the transfer of the case to them.
And thirdly, if it is for the ordinary forums to exercise discretion in the matter of a request received from the army authorities, what is the basis on which such request should be considered and then allowed or declined.
The court formulations came against the backdrop of the March 25 letter written by the General Commanding Officer, Headquarters 17 Division, Operational Area Swat, to the district commissioner of Malakand after the registration of an FIR No. 11 of March 20 against Naib Subedar Amanullah Baig along with his colleagues posted at the Army Fort Malakand on behalf of Defence Minister Khawaja Mohammad Asif in the Levy Post Malakand under Section 346 of the PPC for removing the 35 missing persons.
The GOC letter had asked the DC to transfer the case papers to the army authorities. Then the suspects had not yet been arrested. Subsequently, on March 28, the DC Malakand replied to the GOC that the case had been closed and the case documents had been dispatched to the army authorities.
In addition to these questions, the court will take up the cases of missing persons Mubashar Naseem, Umar Hayat, Sajjad Amjad, Mulazim Hussain, Maulana Shabbir Ahmad Usmani and others.
Published in Dawn, June 22nd, 2014