ISLAMABAD:
The Khyber Pakhtunkhwa (KP) Public Prosecution Department is yet to file an application before an anti-terrorism court (ATC) seeking withdrawal of the May 9 cases, one of which includes KP Chief Minister Sohail Afridi as an accused.
The Federal Constitutional Court (FCC), while hearing Radio Pakistan’s petition on March 24, passed a restraining order regarding the withdrawal of the May 9 cases. The petitioner intends to transfer the cases from one province to another. As of March 24, the case has not yet been set for hearing.
A senior KP Law Department official, speaking to The Express PAkGazette, expressed surprise that the FCC has passed a restraining order when the KP government is yet to file an application at the ATC, adding that there should be a cause of action first.
“It would have been better if the FCC had listened to the KP Prosecutor’s Office before passing the restraining order,” he added. However, the official said that as long as the FCC settles the matter for a hearing, they will raise all legal objections.
Regarding the KP cabinet’s decision to withdraw all cases from May 9, he stated that the cabinet only decided to withdraw “politically motivated cases” and cases that lack clear evidence against the accused.
He also said that in the KP there are a total of 29 cases related to terrorism, of which 23 have already been resolved. Likewise, 319 cases related to the incidents of May 9 were filed in the ordinary justice system, of which 285 have already been resolved.
On the transfer of ATA cases from one province to another, the official maintained that it is the responsibility of the Chief Justice concerned to pass such an order as per law.
The attorneys also question whether the FCC would approve a restraining order without first deciding whether the petition can be maintained. They argue that before issuing such an order, the FCC should have listened to the other side.
In the past, the Supreme Court has been criticized for exercising public interest jurisdiction without deciding the maintainability of petitions. After the Eid holidays, the FCC accepted two petitions that could affect the interests of the PTI, particularly those of the KP chief minister.
The FCC heard a petition seeking transfer of the May 9 case from Peshawar to Islamabad or any other province. Afridi is one of the accused in the case, which relates to the May 10, 2023 attack on Radio Pakistan Peshawar.
Similarly, a three-member FCC bench, headed by Chief Justice Amin-ud-Din Khan, while hearing a petition filed by Islamabad-based advocate Malik Zaheer Ahmed, sought a response from Sohail Afridi within 10 days on the formation of PTI founder Imran Khan’s “liberation force”.
Interestingly, there is no official notification about Imran Khan’s ‘release force’. Dozens of PTI-related cases have been transferred from the Supreme Court to the FCC. However, these cases have not yet been set for hearing.
Despite the passage of almost a year, the FCC has yet to address the issue related to the implementation of a ruling that ordered the federal government to take steps for appropriate legislation granting the right of appeal to civilians tried in military courts.
The Supreme Court Practices and Procedures Act remains applicable in the Supreme Court to ensure transparency in the powers of the Chief Justice with respect to fixing cases and forming tribunals.
On the other hand, the Chief Justice owns the FCC list. The chief justice’s powers to settle cases and form courts are not regulated at the FCC.
Interestingly, there are two-member courts that hear cases related to the interpretation of the law and the Constitution. Previously, political parties had expressed concern about the lack of representation of all provinces in the courts that hear constitutional matters.
Although there are 22,384 cases pending, only seven judges currently serve on the FCC.
The FCC judges also face a “perception battle” since they were appointed by the federal government, which is expected to be the main litigant before the court.
The challenge now facing judges is to demonstrate that they do not have an “executive mindset” and will dispense justice “without fear or favor.” The colleges that challenged the 26th Constitutional Amendment are not interested in filing petitions against the 27th Amendment.
