The Supreme Court on Wednesday announced its eight-page reserved judgement against the procedure adopted by the military court to enhance the sentence of two civilians convicted of having a role in the suicide attack on the then President, Pervez Musharraf, from life imprisonment to death penalty. The apex court annulled army court's death penalty judgement by saying that the sentence was enhanced without jurisdiction.
A three-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry and comprising Justice Ejaz Afzal and Justice Sheikh Azmat Saeed reserved the judgement on the review petitions of Rana Naveed and Ameer Sohail. The court also declared that enhancement in sentence could not be made in vacuum as such action by military court was essentially against the principle of natural justice enshrined in the maxim audi alteram partem and Articles 4 and 9 of the constitution. They were convicted and awarded life term and 20 years jail term respectively by a Field General Court Marshal (FGCM) on July 21, 2005. But later the life term was converted into death sentence.
Authoring the eight pages judgement, Justice Ejaz Afzal said: "Once we are convinced that the order enhancing sentence (by the military court) 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 judgement requires correction for the ends of justice."
Two men along with six other were tried and convicted by the army court for their involvement in the twin suicide attacks on the official convoy of the then President on December 25, 2003 when 15 passer-bys were killed near Jhanda Chichi. The apex court noted that the military Court of appeal under section 133-B Army Act 1952 had the power to reduce or enhance the punishment but this could only be done when there was an appeal before it.
Under 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. Announcement of finding and award of sentence according to the statement submitted by the counsel for Ministry of Defence is 21st July, 2005., while the dates of filing appeals by Ameer Sohail is 2nd September, 2005 and by Rana Muhammad Naveed is 26.11.2005.
The judgement 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 Act. So the enhancement of sentence could not be 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, yet sentence of imprisonment could not have been converted into death sentence without giving an opportunity to the petitioners to show cause why their sentence should not be enhanced.
"Admittedly no opportunity was given to the petitioners to show cause, why their sentence should not be enhanced." "The sentence thus enhanced would be without jurisdiction and coram non judice. Therefore, it cannot be sustained under any canons of law and propriety."
The judgement admitted that the 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 judgement dated 25.09.2006 of this Court, whereby Civil Appeal Nos. 782 and 825 were dismissed.
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