Pakistan: Three-judge committee to construct larger bench to hear appeals on military trials

Islamabad [Pakistan], January 30 (ANI): The Pakistan Apex Court Judge Justice Sardar Tariq Massod on Monday referred a set of intra-court appeals (ICA) in the military court case back to the three judge committee for the reconstitution of a larger bench, Dawn News reported on Tuesday.

This comes after one of the petitioners argued that the present bench was not constituted by a three-judge committee under the Supreme Court (Practice and Procedure) Act, 2023.

The court was seized with a number of applications to refer the present appeals to the three-judge committee that decides benches to hear petitions under Section 2 of the SC (Practice and Procedure) Act, 2023, for the reconstitution of a bench by excluding Justice Masood.

During the hearing, senior counsel Barrister Aitzaz Ahsan told the court that since his counsel, Sardar Latif Khosa was on a general adjournment, the present case would be heard after the February 8 general elections.

Similarly, Advocate Salman Akram Raja also furnished an application that he was on a general adjournment and, therefore, could not appear before the court.

As per the Pakistan-based news daily, Justice Masood, who was heading a six-judge bench upheld the December 13, 2023 suspension, which would continue against the operation of the court’s October, 23 short order that declared as unconstitutional the trial of 103 civilians identified in relation to their alleged involvement in the May 9 violence.

Earlier on January 18, former chief justice Jawwad S. Khawaja, one of the respondents in the ICA, moved an application before the SC seeking reconstitution of the larger bench comprising senior-most judges to decide the ICA in the military court case.

Moved through his counsel, Khwaja Ahmad Hosain, the application prayed that the apex court should declare that the present seven-judge bench headed by Justice Masood was not constituted by the three-judge committee, which was set up under Section 2 of the Supreme Court (Practice and Procedure) Act 2023.

The application has sought a declaration from the Supreme Court that the present six-judge bench hearing ICAs was not a lawful larger bench under Section 5 of the Act since it comprises a judge who has previously heard the original petition and passed a note deciding one of the issues agitated in the original petition challenging the trial of the civilians by the military courts.

The applicant pleaded that pending ICA’s should be referred back to the three-judge committee for the implementation of its earlier decision to constitute a bench consisting of seven senior-most eligible judges to hear these appeals, Dawn News reported.

Earlier, on December 28, the appellant had written a letter to the committee raising a similar plea for hearing the pending ICAs in the military court case.

Dawn News reported that the appellant cited a recent note of Justice Syed Hasan Azhar Rizvi on the constitutionality of the practice and procedure act, in which he held that a judge who was part of the original bench and gave his view could not be made part of the appellate bench.

Justice Rizvi had also stated that the very purpose of an appeal was an entire rehearing by a new set of judges, and it would defeat the purpose of providing an appeal if a judge who has sat on the original bench and even expressed a view was made part of the appellate bench as well.

The application explained that Justice Masood was part of the original bench and had given a finding that every individual case has to be considered on the basis of the facts of the case. In giving this finding, Justice Masood had decided that the subject petitions brought in the public interest by parties who were not accused under the Pakistan Army Act, 1952 were not maintainable under Article 184(3) of the Constitution.

Likewise, senior counsel Faisal Siddiqui, on behalf of a number of respondents, had furnished a similar request.