• Applicants also object to Justice Tariq Masood being made part of appellate bench
• Intra-court appeals sent back to three-judge committee for reconstitution of bench

ISLAMABAD: Senior puisne judge of the Supreme Court Justice Sardar Tariq Masood on Monday referred a set of intra-court appeals (ICA) in the military court case back to the three-judge committee for the reconstitution of a larger bench after one of the petitioners argued that the present bench was not constituted by a three-judge committee under the Supreme Court (Practice and Procedure) Act, 2023.

Justice Masood, who was heading a six-judge bench, however, made it clear that the Dec 13, 2023 suspension would continue against the operation of court’s Oct 23 short order that declared as unconstitutional the trial of 103 civilians identified in relation to their alleged involvement in the May 9 violence.

During the hearing, senior counsel Barrister Aitzaz Ahsan told the court that since his counsel Sardar Latif Khosa was on a general adjournment, the present case be heard after the Feb 8, general elections.

Similarly, Advocate Salman Akram Raja also furnished an application that he was on a general adjournment, therefore, could not appear before the court.

The court was seized with a number of applications to refer the present appeals to the three-judge committee that decides benches to hear petition under Section 2 of the SC (Practice and Procedure) Act, 2023, for the reconstitution of a bench by excluding Justice Masood.

Earlier on Jan 18, former chief justice Jawwad S. Khawaja, one of the respondents in the ICA, had moved an application before the SC seeking reconstitution of the larger bench comprising senior-most judges to decide ICA in the military court case.

Moved through his counsel Khwaja Ahmad Hosain, the application had prayed that the apex court should declare that the present seven-judge bench headed by Justice Masood was not constituted by the three-judge committee, which was set up under Section 2 of the Supreme Court (Practice and Procedure) Act 2023.

The application has sought a declaration from the Supreme Court that the present six-judge bench hearing ICAs was not a lawful larger bench under Section 5 of the Act since it comprises a judge who has previously heard the original petition and passed a note deciding one of the issues agitated in the original petition challenging trial of the civilians by the military courts.

The applicant pleaded that pending ICA’s should be referred back to the three-judge committee for the implementation of its earlier decision to constitute a bench consisting of seven senior-most eligible judges to hear these appeals.

Earlier also on Dec 28, the appellant had written a letter to the committee raising a similar plea for hearing of the pending ICAs in the military court case.

The appellant cited a recent note of Justice Syed Hasan Azhar Rizvi on the constitutionality of the practice and procedure act, in which he held that a judge who was part of the original bench and gave view could not be made part of the appellate bench.

Justice Rizvi had also stated that the very purpose of an appeal was an entire rehearing by a new set of judges and it would defeat the purpose of providing an appeal if a judge who has sat on the original bench and even expressed a view was made part of the appellate bench as well.

The application explained that Justice Masood was part of the original bench and had given a finding that every individual case has to be considered on the basis of the facts of the case. In giving this finding, Justice Masood had decided that the subject petitions brought in the public interest by parties who were not accused under the Pakistan Army Act, 1952 were not maintainable under Article 184(3) of the Constitution.

Likewise, senior counsel Faisal Siddiqui on behalf of a number of respondents had furnished a similar request.

Published in Dawn, January 30th, 2024