ISLAMABAD - The Supreme Court on Monday reserved the judgment on the petitions of five convicts, who were awarded death sentence by the military courts.

A five-member larger bench headed by Chief Justice Anwar Zaheer Jamali heard the cases of Haider Ali, Qari Zahir Gul, Attique-ur-Rehman, Taj Muhammad and Faiz Zaman Khan.

The counsels of the convicts pleaded that the sentence to their clients be set aside and declared null and void on the basis of coram non judice, without lawful jurisdiction and mala fide. They argued that prima facie it appeared that the only names of the convicts change as the order is the same in almost all cases. The lawyers also emphasised that even the procedure given in the Pakistan Army Act Rules 1954 was not fully complied and also due process and fair trial under Article 10A of Constitution was not adhered.

The chief justice said though the convicted persons have pleaded not guilty but in so many words had accepted that they waged war against the State. Justice Jamali said in the border areas if the terrorists kill people then there is no one except the army officers to give witness. He said in the cases before them 4 to 5 persons have given witnesses against the convicts.

Asma Jehangir advocate, represented Haider Ali and Qari Zahir Gul. She informed that Haider Ali was picked up by Baloch Regiment on 21-09-2009 from his village in front of the whole family under the offence of Action in Aid of Civil Power. In April 2015 the family through media came to know that Haider Ali was awarded death sentence by the military court.

She complained that they were shown the record but were not allowed to take notes. She argued that there is no precedent of it anywhere in the world, even at the time of war.

The authorities on the order of the apex court had furnished record of 11 convicts, which the counsels had perused in the office of the Attorney General for Pakistan. However, they were not allowed to take picture or the notes.

Asma claimed that the sentences were awarded on the basis of confession without evidence. Justice Azmat Saeed Sheikh said: “We need to play the game by the rules.” He said in view of the 21st Amendment judgment a little window is opened therefore they have to be careful.

Asma said under section 87 of Pakistan Army Act the accused should be allowed to engage the counsel of his own choice and the counsel means, one who has legally qualified and practicing lawyer. She said that the accused did not know what charges were against them, adding for hiding guilt they were tried by the military courts.

She said: “I don’t have sympathy with the terrorists but also can’t ignore the violation of rules. Under Article 10A the convicts have right of fair trial and due process.” Nothing in the constitution mentioned that allows the violation of the laws, she said and added that it was not the case of two or three convicts against death sentences but question of Fundamental Rights. Attique Shah Additional Advocate General argued that convicts were properly cross-examined and were provided opportunity to defend by the counsels. He said charges were duly framed after completing the whole procedure, adding there is no violation of Fundamental Rights.

He told that the Peshawar High Court, which had dismissed convicts petitions in its judgment says coram non judice and without jurisdiction of law could not be established and there is no deviation of the law as procedure given in the PAA 1952 was fully followed.

About her other client, Asma informed that Qari Zahir Gul was taken into custody on 27-04-2011 from Jalozai Camp under Action in Aid in Civil Power and the family came to know about death sentence in April 2015 through daily ‘Mashriq’. The AAG told that the Qari was charged of seven heinous crimes.

Asma Jehangir asked bench that there should not be a collective order of all cases but each case should be decided on its merit. Justice Azmat said they are not hearing appeals but the challenges thrown to apex court in the writ petitions.

Latif Afridi represented Attique-ur-Rehman and Taj Muhammad. He said Attique was arrested from Nowshera on December 6, 2014 but his confessional statement was recorded in Charsadda.

The confessional statement was not free or voluntary but due to physical torture, he said.

The counsel told that in August 2015 the family came to know about the sentence through media. He said charge against Attique was that he was facilitator in Army Public School, Peshawar attack, while he was arrested 10 days before that incident.

The AAG told that there is no deviation of law. He said conviction of Attique ur Rehman is not only based on confession but he had pleaded guilty and said he had committed that act following religious dictates.

About Taj Muhammad, the counsel informed that he was a poor man, a Rikshaw driver. He said he was picked up from suburb of Peshawar in February 2015 but his statement was recorded in Swat. There is no evidence against him that he facilitated attack on the Army Public School.

Advocate Col (Retd) Muhammad Akram appeared on behalf of Faiz Zaman Khan. He said Article 10(1) has been violated in this case, adding any sentence awarded in the absence of counsel is totally illegal.

In cases where the record of convicts had not been produced the court directed the authorities to submit it so that convicts’ counsels could examine in the AGP office in the presence of the authorities.

The chief justice said the cases where record of convicts is available the hearing of them would conducted on day to day basis and adjourned the hearing till Tuesday.