ISLAMABAD - The Supreme Court on Wednesday allowed the civil review petition of two persons convicted by a military court for their involvement in suicide attack on former President General (r) Pervez Musharraf and declared the enhancement of sentence by Military Court of Appeal beyond jurisdiction and not in accordance with requirements of justice.
Naveed and Ameer were awarded life term and 20 years jail respectively, for their involvement in the twin suicide attacks on Musharraf convoy on December 25, 2003 near Jhanda Chichi, by a Field General Court Marshal (FGCM) on July 21 2005. But later army Court of Appeal converted the life term into death sentence.
The judgment authored by Justice Ejaz Afzal said: “Once we are convinced that the order enhancing sentence is without jurisdiction and coram non judice, it cannot be allowed to hold the field notwithstanding it surfaced during the course of hearing a review petition. The error being patent on the face of the judgment requires correction for the ends of justice.”
The apex court noted that the military Court of Appeal under section 133-B of Pakistan Army Act 1952 has the power to reduce or enhance the punishment but this could only be done when there is an appeal before it.
According to the section, an appeal against conviction and sentence could be filed before the Court of Appeal within 40 days from the date of announcement of finding, sentence or promulgation thereof. The period of limitation would run from any of them whichever is earlier.
Announcement of finding and award of sentence, according to the statement submitted by the counsel for defence ministry is July 21, 2005, while Ameer Sohail filed appeal on September 2, 2005 and Rana Naveed on November 26, 2005.
The apex court judgment said these appeals, quite obviously, were barred by time. Hence there were no appeals before the Court of Appeal in terms of Section 133-B of the Army Act. The court noted that the enhancement of sentence could not have been made in a vacuum. “Such enhancement is essentially against the principle of natural justice enshrined in the maxim audi alteram partem and articles 4 and 9 of the constitution.”
The court said assuming for the sake of arguments that there were appeals before the Court of Appeal, sentence of imprisonment could not have been converted into death sentence without giving an opportunity to the petitioners to show cause that why their sentence should not be enhanced. “Admittedly no opportunity was given to the petitioners to show cause... The sentence thus enhanced would be without jurisdiction and coram non judice. Therefore, it cannot be sustained under any cannons of law and propriety,” said the judgment.
The judgment admitted that Article 199(3) of the constitution prohibits the High Court from making an order in relation to a person who is a member of Armed Forces of Pakistan or who is for the time being subject to any law relating to any of those forces or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law but not when acts, actions or proceedings which suffer from defect of jurisdiction and are thus coram non judice.
This civil review petition has arisen out of the apex court judgment of Sept 25, 2006, whereby Civil Appeal Nos. 782 and 825 were dismissed. Appellants Zubair Ahmed, Rashid Qureshi, Ghulam Sarwar Bhatti, Salahuddin, Ikhlas Ahmed, Naik Arshad Mehmood, Rana Naveed, and Ameer Sohail were found involved in the commission of offence falling within the mischief of Section 31(d) read with Section 59 of the Pakistan Army Act.