DAWN/The News International, KARACHI
18 February 1999, Thursday, 01 Ziqaad 1419
ISLAMABAD: To forestall the military's intervention in the judicial system, the Supreme Court in a landmark decision here on Wednesday declared the establishment of military trial courts (MTCs) under Article 245 as unconstitutional, without lawful authority and of no legal effect.
In a seven-page short order, a nine-member Supreme Court bench headed by Chief Justice of Pakistan Mr Justice Ajmal Mian directed to transfer all pending cases to anti-terrorist courts and set aside the sentences awarded by the military courts but not executed as yet, with enlisting a comprehensive package to deal with the menace of terrorism.
"We are of the view that Ordinance XII of 1998 as amended up-to-date in so far as it allows the establishment of military courts for trial of civilians charged with the offences mentioned in Section 6 and Schedule to the above Ordinance are declared unconstitutional, without lawful authority and of no legal effect and the cases in which sentences have already been awarded but the same have not yet been executed shall stand set aside and be transferred to the anti-terrorist courts already in existence or which may hereinafter be created in terms of the guidelines provided hereunder for disposal in accordance with law," said a unanimous decision of the Supreme Court's full bench.
The order also granted exemption by clarifying that the declaration would not effect death sentences already executed for being treated as 'past and closed transactions'. Two persons, including Ashraf Chakar and Rafiuddin alias Babli, involved in killing a police constable, and kidnapping, robbery and rape of a young student respectively were hanged after the military courts awarded death sentences to them.
Though the petitioners after the judgment expressed full confidence in the court, the government side also believed that the order in fact was vindication of its stand that the military courts were established due to delay in adjudication of cases.
Muttahida Qaumi Movement (MQM) senators Aftab Sheikh, Nasreen Jalil and Mustafa Kamal, MNA Kunwar Khalid Younus and Prime Minister's Political Advisor Mushtaq Tahir Kheli were also present in the courtroom when the order was announced.
The order, read out by the chief justice, also nominated Mr Justice Nasir Aslam Zahid and Mr Justice Munawar Ahmed Mirza to monitor the implementation of the nine-point guidelines laid down in the order. The detailed reasons of the order would be recorded later by the bench.
With the order, the five petitions filed by MQM MNA Sheikh Liaquat Hussain, the MQM through its Deputy Convener Senator Aftab Sheikh, PPP leader Nisar Khuhro, Chairman Muslim Welfare Movement Syed Iqbal Haider, Shahid Orakzai and the federation's review petition against staying of execution on death sentences by the MTCs, stand disposed of.
The short order announced by the chief justice at 12:46 pm stated that the evidence already recorded in the cases and the pending cases shall be read as evidence, provided that it shall not affect any of the powers of the presiding officer available under the law in this regard.
The bench, which sat to decide five identical petitions, assailing the establishment of military trial courts for 13 consecutive days, also observed that the aid of the armed forces could be pressed into service at all stages, including the security of the presiding officer, advocates and witnesses minus the process of judicial adjudication as to the guilt and quantum of sentence. Led by Chief Justice Mr Justice Ajmal Mian, the bench comprised Mr Justice Saiduzzaman Siddiqui, Mr Justice Irshad Hasan Khan, Mr Justice Raja Afrasiab Khan, Mr Justice Muhammad Bashir Jehangiri, Mr Justice Nasir Aslam Zahid, Mr Justice Munawar Ahmed Mirza, Mr Justice Mamoon Kazi and Mr Justice Abdur Rahman Khan.
The order also mentioned that the court was not oblivious to the fact that terrorism in Karachi and in other parts of Pakistan had not only taken toll of thousands of innocent lives, but had also affected the economy of the entire country. And it was a matter of paramount importance that the menace was eliminated effectively in the shortest possible time, for which a solution be found within the framework of the Constitution.
In line with this observation, the bench laid down guidelines since it was seized with the petitions in exercise of its constitutional jurisdiction under Article 184(3) of the Constitution. The bench announced that it was laying down the guidelines which might contribute towards the achievement of the objectives to combat terrorism.
The guidelines suggest that the cases relating to terrorism be entrusted to the special courts already established or which may be established under the Anti-Terrorism Act (ATA), 1997, or under any law in terms of the earlier judgment in Mehram Ali versus Federation of Pakistan by the apex court.
The bench suggested that one case be assigned at a time to a special court and till the judgment was announced, no other case be referred to it. The concerned special court should proceed with the case entrusted to it on day-to-day basis and pronounce judgment within a period of seven days as already provided under the ATA or as may be provided in any other law.
The guidelines stated that the challan of a case should be submitted to a special court after full preparation and after ensuring that all witnesses be produced as and when required by the concerned special court. An appeal arising out of an order/judgment of the special court shall be decided by the appellate forum within a period of seven days from the filing of such appeal.
According to the suggestion, any lapse on the part of the investigating and prosecuting agencies shall entail immediate disciplinary action according to the law applicable. The order asked the chief justice of the Lahore High Court to nominate one or more judges of the High Court for monitoring and ensuring that the cases/appeals were disposed of in terms of the guidelines.
Similarly, the chief justice will also nominate one or more judges of the Supreme Court to monitor the implementation of the guidelines. The judges so nominated will also ensure that if any petition for leave or appeal with leave is filed, the same is disposed of without any delay in the Supreme Court.
The order said besides invoking aid of the Armed Forces in terms of sections 4 and 5 of the ATA, the assistance of the armed forces can be pressed into service by virtue of Article 245 of the Constitution at all stages, including the security of the presiding officer, advocates and witnesses appearing in the cases, minus the process of judicial adjudication as to the guilt and quantum of sentence till the execution of the sentence.
Eminent lawyers Akram Sheikh represented Sheikh Liaquat Hussain, Dr M Basit appeared on behalf of Aftab Sheikh, Barrister Aitzaz Ahsan argued on behalf of Nisar Khuhro, while Syed Iqbal Haider and Shahid Orakzai appeared in person. Attorney General for Pakistan Chaudhry Muhammad Farooq and Advocate General Sindh Iqbal Radh represented the federation of Pakistan.
The bench on Wednesday allowed 10 minutes time to each petitioner to reply against the arguments of the attorney general, who had concluded his arguments on Tuesday. Earlier, Aitzaz Ahsan, in his reply assured the government that the opposition in the Upper House would cooperate if the government intended to bring some legislation for improvement in the situation. Replying to the AG's submissions for guidelines, Aitzaz said that what required was putting in place strict administrative measures.
The chief justice also remarked that improvement could be made through good management of the court's rooster by monitoring that all cases were taken up and disposed of in time. Aitzaz also asked whether there was any room for improvement when the MTCs did not pass speaking orders.
Dr Basit, meanwhile, assured the bench that the MQM supported the government's attempt of deweaponisation, army patrolling or house-to-house search. As a symbolic gesture, MQM chief Altaf Hussain has also offered to search his headquarters at "90".
Dr Basit alleged that the intelligence agencies were involved in terrorism in Karachi and an impression was being created through the electronic media that any adverse decision by the apex court against the military courts would switch on the commission of terrorism. However, the chief justice clarified that there was no material evidence before the bench that the intelligence agencies were involved besides this was not an issue before the court.
Muttahida celebrates SC judgment on MTCsKARACHI: The Supreme Court judgement declarING Military Courts illegal was widely welcomed by the Muttahida Qaumi Movement, PPP and other political leaders.
Muttahida distributed sweets at Karachi Press Club and other parts of the city. A large number of Muttahida supporters and sympathisers thronged at Nine Zero taking it as a victory for the MQM and a setback for the present government. A large number of people are making calls for congratulating this judgement."
"It is a momentous moment and historic judgement given by the SC as all the eyes of the world were on it," said parliamentary leader Dr Farooq Sattar, "The concept of justice hurried has been buried by the Supreme Court and SC has upheld the view that the establishment of MTC was unconstitutional, unlawful and illegal. Nobody can interpret the constitution in an extra-constitutional manner."
"The feeling of joy and happiness cannot be expressed in words," added a very happy-sounding Sattar on the telephone. Sattar said similar extreme situations had prevailed in the Indian Punjab and Ireland but they never resorted to establishing military courts.
Talking to The News, MNA Babar Khan Ghouri said it was a historic decision that spread a wave of happiness among the urban people of Sindh particularly Karachi. He added that a maund of sweets would be distributed in Karachi, Hyderabad and Sukkur and other parts of Sindh.
Babar said Nawaz Sharif in his previous government took on a position of confrontation against the judiciary with some other parties by his side. But if at any stage Nawaz Sharif tried to do the same again with the judiciary again, he said "MQM would support the judiciary with full strength."
The leader of the opposition in Sindh Assembly Nisar Ahmed Khuro issued a statement saying, "The present regime led by Nawaz Sharif claims a heavy mandate as arranged by his political mentor, late General Zia ul Haq,and the former had toed the same line as the latter. Both mandates given under mysterious conditions have proved disastrous."
Khuro said setting up military courts was an extra- constitutional measure to involve an institution which had nothing to do with day-to-day affairs and there was no threat of external aggression for Sindh for which the army was called in aid of the people."
"Nawaz Sharif's PML(N) was given the task to demoralize every institution so that a handful people could do as they pleased without fear or accountability," he added Acting Speaker Sindh Assembly Syed Jalal Shah said the decision would change the entire scenario and he federal government would now have to review the credibility of Governor's rule in Sindh." He said the judgement had given some strength to the Assembly although SC has restricted any legislation by the assembly. The MQM Coordination Committee met on Wednesday to review the SC judgement .
Opposition terms it a government defeatISLAMABAD: Opposition parties hurried on Wednesday to hail the Supreme Court verdict declaring military courts unconstitutional, with the PPP calling it a "giant leap forward towards establishing rule of law and constitution" while the MQM terming it a "historic judgment".
Opposition Leader Benazir Bhutto hailed the Supreme Court's verdict declaring military courts as unconstitutional, and termed the decision as a giant leap forward towards establishing rule of law and Constitution, and a slap on the face of a regime hell bent upon destroying every institution of state.
"The verdict will help re-establish the authority of the judiciary after the Nawaz regime sought to undermine it by dividing and physically assaulting the Supreme Court in November 1997," she said in a statement on Wednesday.
The opposition leader said that an incompetent and corrupt regime, unable to control terrorism and lawlessness in Karachi and elsewhere in the country, had responded in the fashion of a coward: blame the judiciary and concentrate powers in its hands. Benazir said the PPP had all along maintained that the regime's response was wrong, immoral and unconstitutional. "That position has been vindicated by the Supreme Court verdict," she said.
Benazir Bhutto said: "The Supreme Court's verdict was quite expected in the light of past court judgments. In the Darvesh Arbey case a full bench of the Lahore High Court had ruled that the military courts could not be established under Article 245 of the Constitution."
She said again the Supreme Court had not approved of the ordinance under which duly trained executive magistrates were empowered to award a mere three years sentence. "We, therefore, did not expect the Supreme Court to approve awarding of death sentences by military courts whose officers were neither trained nor had the aptitude for this kind of work," she said.
Benazir Bhutto said that the regime's myopic response to the criticism had been that the society was brutalized by the terrorists and they had to be swiftly punished by the military courts. This was the typical response of a criminal towards another criminal and not that of a civilized state towards a criminal, she said and added that it amounted to taking the law into one's own hands and denying justice to the people. The opposition leader said that the verdict had also raised the issue of those who had already been executed following the military court verdicts.
They were executed despite the fact that the petition challenging the constitution of the military courts was pending before the Supreme Court and thoughtful people had formally warned the regime not to go ahead hastily with the executions and wait for the verdict, she said.
At a crowded news conference in Parliament cafeteria, MQM Senators feared that "negative forces", would create lawlessness in Sindh. "They have always had access to a button, by switching it on ... violence erupts ... " Senator Aftab Sheikh said.
He called upon the government to accept with an open heart the judgment of the Supreme Court but warned that to send bad signals to the Supreme Court for its judgment, the "negative forces/agencies" would create unrest to blame the MQM.
Senator Sheikh recalled that the attorney general was already on record having said that without the military courts, law and order would be affected badly. The Senator said the AG had even read in the court a letter of the prime minister, which carried the same message. According to the MQM Senator, planted demonstrations were arranged in Karachi in favour of military courts.
"So let me inform everybody that the government would now try to prove that lawlessness was recurring due to the Supreme Court's judgment (of winding up military courts)," Senator Sheikh said. He foresaw custodial killing and other related crime in the days to come.
In reply to a question, Senator Sheikh said that the MQM was ready to produce its Chief Altaf Hussain before the Supreme Court for trial but remarked "let there be a guarantee for his life first". He cited in support of his argument the assassination of Mir Murtaza Bhutto.
He favoured deweaponisation campaign but said it should not remain confined to Karachi only and be carried out in the Punjab also. He said the army should conduct this campaign and raid the sources where arms were produced.
Agha Syed Hamid Ali Shah Musavi, chief of Tehrik-e- Nifaz-e-Fiqah Jafaria termed the SC decision a victory of the judiciary and people of Pakistan. He said that judiciary's job is to protect the Constitution while the army's job is to defend the frontiers of the motherland.
Senator Zahid Khan of ANP said that the Supreme Court has upheld supremacy of the Constitution and with this decision people have attached much more expectations with the judiciary. He said that the government is in the habit of creating new issues every day to distract the masses attention from real issues. He said that the SC decision has also foiled the government plan to ruin the image of the army.
Jamhoori Watan Party chief Nawab Akbar Bugti MNA expressed pleasure over the Supreme Court decision which he added paved the way for "rule of law in the country instead of rule of jungle". Former military leaders including Army chief Gen (Retd) Aslam Beg, Lt Gen (retd) Hameed Gul suggested the government to accept the apex court's decision with open heart and don't make it a matter of prestige.
Beg said the government was compelled to set up military courts after the failure of civil courts but the Supreme Court has declared them unconstitutional. He feared that the judges and witnesses of the civil courts would be killed like in the past and it might affect the Karachi situation.
Gul said that the apex court has given a good verdict to uphold the constitution and rule of law. He said that if the civil courts provided justice on time the Karachi situation would not deteriorate. "Peace cannot be restored without justice," he added.
Shujaat assures protection to AltafISLAMABAD: Chaudhry Shujaat Hussain has said: "If Altaf Hussain returns home, government would take full care of his protection." He refuted MQM's allegations that some certain quarters would initiate disturbances after the judgement.
Altaf greets party leaders, workersKARACHI: MQM Chief Altaf Hussain paid rich tributes to the Supreme Court of Pakistan for its historic decision. In a statement issued on Wednesday he said that on this happy occasion they should not forget the sacrifices given by the MQM workers and martyrs of the party. He called it a victory of blood given by the martyrs of the Muttahda and felicitated all the workers. He was talking to MQM MNAs, Senators and Dr Basit Advocate separately from London He sad the SC judgement was the victory of all oppressed Sindhi, Baloch, Pushtoon, Punjabi, Siraiki, and Kashmiri who have been in the grip of feudal lords the last 50 years. It was also the victory of those workers living underground and facing hardships for the party, and the 28 MQM missing workers. He congratulated each and every member of MQM's Coordination Committee. Meanwhile, commenting on the SC judgement , Tehrik-e-Insaf Secretary General, Mehraj Mohammed Khan called it a historic judgement and demanded that a case be registered against the government and Nawaz Sharif for all the illegal hanging done by the MTC.
Accused in Hakim Said murder case make victory signsKARACHI: The accused in Hakim Muhammed Said's murder case made victory signs from the gun holes of an Armoured Personnel Carrier (APC) outside the residence of former Senator Ishtiaq Azhar on Wednesday.
The MTC 06 went to the residence of ex-Senator Ishtiaq Azhar to record the statement of Senator Azhar who according to Investigating Officer (IO) SP CIA, Agha Tahir, had written a letter to Choudhry Nisar Ali Khan, Federal Minister for Provincial Co-ordination in which he had stated some information divulged by Hakim Muhammed Said to him (Senator Ishtiaq).
The IO mentioned this fact today before the MTC during his cross examination which continued for the second day on Wednesday. The court accompanied by all defence counsel, Special Public Prosecutor, PDSP and all the nine accused proceeded to the residence of Senator Azhar in a cavalcade, including 17 vehicles. The court members and defence counsel travelled in a coaster while the accused were in two APC's guarded by a heavy contingent of Army, Rangers and Police. The area around the residence of former Senator Azhar was also heavily guarded and policemen were seen posted atop roof of adjoining bungalows in a lower middle class locality.
The court left the Malir Garrison at about 1045 hrs, reached the destination at about 1105 hours and stayed for less than half an hour during which the evidence of former Senator was recorded. The wife of the senator and younger brother kept interrupting the proceedings and time and again reminded the senator not to 'speak beyond what was stated in the said letter'.
"This was decided with the IGP that his statement will be confined to the letter only," prompted the younger brother. The wife of former senator and former Coordinator of MQM Rabita Committee was at least on three occasions heard saying that "we have no connection with the Hakim Said's murder case, we know nothing about it, he (senator) has nothing to say except what was written by him in his letter (to Choudhry Nisar )".
The final interruption came just before 12:00 noon and the wife of senator reminded him that "it is time for medicines ". The accused were kept in ' hearing zone ' as according to law no proceedings can be held in the absence of the accused. The senator who appeared to be fit deposed without any difficulty. It is note worthy that Adil Noor Khan, who was seriously injured during a dacoity bid and was in comparably fragile condition than Senator Ishtiaq was brought to the MTC premises where he was examined by the MTC.
Saulat says he was tortured into making confessionKARACHI: Bandits looted cash and valuables while carjackers took away 14 vehicles on Wednesday. Robbers barged into the house of Muhammad Sadiq in Baghdadi and looted cash, jewellery and other valuables; broke into the house of Muhammad Iqbal in Clifton and looted cash, jewellery and electrical appliances; entered the house of Yamin Khan in Khawaja Ajmer Nagri and looted cash, jewellery and valuables; looted 40 bags of rice and fax machine from the godown of Habib Rehman in Nazimabad; looted electrical appliances and other valuables from the house of Muhammad Taqi in Aziz Bhatti; broke into the house of Shakeel Ahmed in Al-Falah and looted cash, jewellery and prize bonds; barged into the house of Munawar in Orangi Extension and looted cash, jewellery and valuables.
CIA inspector suspendedKARACHI: Police authorities on Wednesday suspended a CIA inspector on the charge of misconduct and ordered an inquiry against him. "Sub-Inspector Arshad Afridi is accused of detaining innocent people illegally and extorting money to release them," a CIA official said. The action was initiated following a written complaint by a victim. The Senior Superintendent of Police (SSP) CIA has also ordered departmental action against the officer. DSP Rasheed Shah has been appointed inquiry officer, police said.
HYDERABAD: SHO suspended, two constables held for 'attack' on vehicleMULTAN: Two militants accused of involvement in the murder of 24 people in different sectarian attacks were killed on Wednesday in a gunbattle near Multan, police said. Tauhid Ahmed Sherwani and Najibullah Qureshi were being escorted by police when armed men attacked the police party to try and free them, police said.
Both died in the "encounter," police said. Police said six unknown assailants riding a pick-up without a number plate came from behind and opened fire in a bid to release them from police custody. The firing by the attackers resulted in injuries to both the suspects who later succumbed to their injuries, police said.
However, all the policemen escaped unhurt. Meanwhile, the return fire by the police party also caused injuries to two of the attackers who sped away from the scene. Police said Sherwani was a right hand man of Riaz Basra, an underground leader of the Lashkar-i-Jhangvi.
Sherwani and Qureshi were arrested last week on an informer's tip-off in Kanorkot village near the town of Mianwali, a senior police official said. He said Sherwani was involved in the January 4 attack on an Imambargah in the nearby town of Karamdad Qureshi in which 17 people were killed. An anti-terrorism court had earlier sentenced him to death in absentia on charges of killing seven other people in two attacks on Shiite gatherings.