The Supreme Court on Monday referred the matter to the Chief Justice of Pakistan to constitute a larger bench for the hearing of cases related to military courts.
A two-member bench comprising Justice Mushir Alam and Justice Mazhar Alam Miankhel heard the appeal against the Peshawar High Court (PHC) judgment.
The lawyer for the accused argued that the PHC had ordered the release of his clients, who were awarded death sentence by the military courts.
However, the apex court had stayed the PHC decision.
He said that according to his information the Supreme Court had not suspended the High Court's order.
He contended that without hearing the counsel for the convicts the Supreme Court could not grant stay against the PHC verdict.
He said the appeal of Ministry of Defence against the High Court verdict was non-maintainable.
Justice Mushir said a three-member bench would hear the case, but unfortunately it was fixed before a two-member bench.
Another lawyer, Laiq Swati, said the accused were languishing in jail, though the PHC had ordered their release.
A two-member bench, headed by Justice Sheikh Azmat Saeed in November 2018 had ordered the jail authorities not to release 74 'hardcore' criminals, whom the Peshawar High Court (PHC) had acquitted last month.
It, however, while issuing notices to Attorney General for Pakistan and the respondents to file replies, had directed the authorities that their death sentences will not be executed till the final adjudication of the case.
The accused were awarded death sentences by military courts.
However, PHC on October 18 ordered the release of 74 convicts sentenced by military courts for their involvement in various terrorism cases after the charges against them could not be proved.
The High Court had overturned the military court sentences on the basis of a lack of evidence.
The Supreme Court on 2nd November had granted leave to the federal government's appeals against the PHC's decision to set aside punishments awarded to 74 convicts by military courts in various cases of terrorism.
During the course of proceedings, Additional Attorney General Sajid Ilyas Bhatti said the PHC had not examined the facts accurately.
He said the accused were involved in crimes such as terrorism and requested the court to restore the sentences so that the judicial process was not compromised.
He also contended that the cases which had been dealt with under the Army Act could not be considered through ordinary laws, adding that the PHC while deciding the matter overlooked certain principles.
The case was adjourned for one week.
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