ISLAMABAD: Civil society members Monday filed a contempt petition in Supreme Court against Secretary Defence for deliberately disregarding and violating its judgement wherein trials of civilians in military courts were declared unconstitutional.
The petitioners have requested the top court to initiate contempt proceedings against the Secretary Defence.
"It is most respectfully and most humbly prayed that this Honourable Court may be pleased to initiate proceedings of contempt of court against the abovenamed Alleged Contemnor i.e., Lt Gen (Retd) Hamood Uz Zaman Khan, Secretary Defence, Ministry of Defence, for deliberately and malafidely, disregarding, and violating the Order dated: 23.10.2023, passed in Constitutional Petition No.26 of 2023, by this Honourable Court," the petition stated filed by Advocate Faisal Siddiqui on behalf of petitioners.
The petitioners include Fahim Zaman Khan and Mahnaz Rahman, the residents of DHA Karachi, Prof. Dr. A. H. Nayyar and Syed Zulfiqar Hussain Gilani, residents of Islamabad.
The petition stated that the judgement against trial of civilians in military court and the direction that the accused persons would be tried by criminal court of competent jurisdiction was clear and unambiguous.
The petition stated that despite the passage of 43 days the custody of the persons, involved in May 9 and May 10 incidents and identified in the list provided by the Attorney General has not been transferred to the Criminal Court of competent jurisdiction.
The petition added that the persons are still in illegal detention and custody of the military authorities.
It is stated that contended that multiple Intra-Court Appeals (ICAs) have been filed by the respondents and non-Respondents, however, no number has been fixed on those appeals by the top court at the moment nor have they been fixed for hearing.
Hence the top court's judgment is still in field and binding upon the parties including the Alleged Contemnor, the petition contended.
"Moreover, it is also settled law that until a stay is granted, mere filing of appeal does not automatically operate as a stay of the Order by the Court," it contended.
"It is most humbly and most respectfully submitted that the Alleged Contemnor is in clear violation of the Order dated: 23.10.2023, as till date the custody of the persons mentioned in Para (ii) of the said Order has not been transferred to the Criminal Court of competent jurisdiction."
In terms of Para (iii) of the top court's judgment, it is clearly and unambiguously declared that any action or proceedings in respect of the persons as identified in the list or any other similar persons, under the Pakistan Army Act, 1952, is declared unconstitutional and of no legal effect, the petition stated.
"Therefore, the continuing detention, with the military authorities, of the aforesaid persons, is unconstitutional and illegal, as such action and proceedings are being taken under the Pakistan Army Act, 1952."
"It is clear from a wholistic reading of the Order dated: 23.10.2023, that there is direction to transfer the custody of the persons, identified in the list provided to this Honourable Court by way of C.M.A No.5327/2023 in C.P. No.24 of 2023, or any other similar persons, to the Criminal Court of competent jurisdiction so that their trial may commence immediately."
"However, despite this clear direction the Alleged Contemnor has failed to issue the orders for the transfer of custody of the said persons to the Criminal Courts of competent jurisdiction."
The petition further highlighted that any delay on part of the Alleged Contemnor in issuing the said orders for transfer of custody, is not only a willful and deliberate disregard of the Order of this court, but it is also a wilfull and deliberate obstruction of the future criminal proceedings of the alleged accused persons mentioned.
“It is most humbly and most respectfully submitted that the constitutional and public importance of this present Contempt Petition is based on the foundation that not only the relevant accused persons are now in continuous unconstitutional detention for the last 43 days but in view of the judgment of the Supreme Court, no habeas corpus or bail proceedings can be initiated except by availing the remedy of contempt through this present Contempt Petition."
"Therefore, it is most respectfully and most humbly prayed that urgent and effective orders are required for implementation of this Court’s Order in order to not only uphold the majesty of law but also in order to safeguard the relevant accused persons from unconstitutional detention."
"That it is most humbly and most respectfully submitted that the Alleged Contemnor has willfully disobeyed, disregarded, and flouted the direction of this Honourable Court, given vide Order dated: 23.10.2023, passed in Constitutional Petition No.24 to 28, 30 & 35 of 2023, and this is a clear-cut case of contempt against the Alleged Contemnor."