SC annuls enhancement in sentence of Musharraf attackers
07 March, 2013
ISLAMABAD: Giving its judgement against the procedure adopted by the military court to enhance the sentence of two civilians who had been convicted for their role in a suicide attack on former president Pervez Musharraf, from life imprisonment to death penalty, the Supreme Court has cancelled the army court's death penalty judgement, noting that the sentence had been enhanced without jurisdiction.
The court declared that the enhancement of sentence could not be made in a vacuum, as such enhancement by a military court is essentially against the principle of natural justice enshrined in the maxim audi alteram partem (the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them) and articles 4 and 9 of the constitution.
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 duo were convicted and awarded life term and 20 years jail term, respectively, by a Field General Court Martial (FGCM) on July 21, 2005.
But later the life term was converted into death sentence. Authoring the eight-page 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."
The two men along with six others were tried and convicted by the army court for their involvement in the twin suicide attacks on the official convoy of Musharraf on December 25, 2003, near Jhanda Chichi, Rawalpindi, in which 15 passersby were killed.
The apex court noted that the military court of appeal under section 133-B Army Act 1952 has the power to reduce or enhance the punishment, but this could only be done when there is an appeal before it. Under the section an appeal against conviction and sentence can be filed before the court of appeal within 40 days from the date of announcement of finding, sentence or promulgation.
Announcement of finding and award of sentence according to the statement submitted by the counsel for the Ministry of Defence is July 21, 2005, while the dates of filing of appeals by Ameer Sohail and Rana Muhammad Naveed are September 2, 2005, and November, 26, 2005, respectively. The judgement said that these appeals 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 have been 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 that 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 argue 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 cannons of law and propriety."