ISLAMABAD - A two-member bench , which heard 35 missing persons’ case, referred the matter whether an ordinary or the military court should hear a case of serving army man, who commits an offence under Pakistan Penal Code (PPC), to Chief Justice of Pakistan for constituting a larger bench on the issue.
In March this year an FIR under Section 346 of PPC was registered on behalf of Defence Minister Khawaja Asif in a Police Station Malakand against Naib Subedar Amanullah Baig and others for taking away 35 prisoners from an Internment Centre in Malakand Fort.
The KP police was directed to investigate the matter but on 25th March the magistrate Dir was informed about the request from General Officer Commanding, Commander Operational Area Swat, asking the magistrate to transfer the case of Amanullah to GOC.
The magistrate complied with the request and as a consequence the case with the Malakand Levis was closed and the documents of the case were forwarded to army authorities on 27-03-2014.
The bench , headed by Justice Jawwad S Khawaja, on May 15 formulated three questions to address the issue and ordered the Attorney General for Pakistan and the Advocate General Khyber Pukhtoonkhawa to submit replies that when a serving army man commits an offence under the PPC; whether the ordinary or the military court should hold its trial? Whether the ordinary court are obliged to concede to the request of army authority or it is its discretion to determine whether or not accept the request of army authorities for transfer of the case. What is the basis to consider/allow or decline such requests.
Onset of the proceeding AGP Salman Butt submitted the reply of the Ministry of Defence in a sealed enveloped, and claimed confidentiality.
The bench after examining the information returned it to the AGP. The attorney general requested the court for in-camera briefing, which the bench declined. The court, however, referred the matter to chief justice for constitution of a larger bench to deliberate on them.
Justice Jawwad said as four benches of the apex court have been hearing the missing persons cases and it does seem good that one bench give a decision which is different from another bench , therefore, in order to have the institutional approach the large bench of the court should hear the matter .
He said: “Every organ of the state is working under some constraint and making sacrifices. It is, therefore, necessary to address the issue and we should resolve the problem, faced by the whole nation.”
Justice Jawwad in the order said: “To ensure uniform consideration of the questions it would be appropriate that these questions are being heard by a larger bench .”
The bench directed the SC office to place the order before the chief justice during the course of the day so that he may pass an order on it.