ISLAMABAD:
The Khyber Pakhtunkhwa (KP) Public Prosecution Service is yet to file a petition with 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, issued a restraining order regarding the withdrawal of the May 9 cases. The petitioner seeks to transfer the records from one province to another. As of March 24, the case has not yet been scheduled for hearing.
A senior official of the KP legal department, speaking to The Express PK Press Club, said he was surprised that the FCC had passed a ban order when the KP government was yet to file an application with the ATC, adding that there should first be a cause of action.
“It would have been better if the FCC had heard from the KP prosecutor before issuing the restraining order,” he added. However, the official said that whenever the FCC sets the case for hearing, it will raise any legal objections.
Regarding the KP cabinet’s decision to withdraw all cases on May 9, he said the cabinet had only decided to withdraw “politically motivated cases” and cases lacking clear evidence against the accused.
He also said that there were a total of 29 terrorism-related cases in KP, of which 23 have already been resolved. Likewise, 319 cases related to the May 9 incidents have been filed in regular courts, of which 285 have already been tried.
Regarding the transfer of ATA files from one province to another, the official maintained that it is the responsibility of the chief justice concerned to pass such an order under the law.
The attorneys also question the FCC’s adoption of a restraining order without first deciding whether to pursue the motion. They argue that before issuing such an order, the FCC should have heard the other side.
In the past, the Supreme Court has been criticized for exercising its jurisdiction in the public interest without deciding on the admissibility of petitions. After the Eid holidays, the FCC took up two petitions that could affect the interests of the PTI, including those of the KP chief minister.
The FCC was hearing a petition seeking transfer of the May 9 case from Peshawar to Islamabad or any other province. Afridi is accused in the case, which relates to the May 10, 2023 attack on Radio Pakistan Peshawar.
Similarly, a three-member bench of the FCC, headed by Chief Justice Amin-ud-Din Khan, while hearing a petition filed by Islamabad-based lawyer Malik Zaheer Ahmed, sought a response from Sohail Afridi within 10 days regarding the formation of PTI founder Imran Khan’s ‘liberation force’.
Interestingly, there is no official notification regarding Imran Khan’s ‘liberation force’. Dozens of PTI-related cases have been transferred from the Supreme Court to the FCC. However, these cases have not yet been scheduled for hearing.
Although nearly a year has passed, the FCC has yet to address the issue of implementing a ruling that ordered the federal government to take steps to ensure appropriate legislation grants the right of appeal to civilians tried in military courts.
The Supreme Court Practice and Procedure Act is still applicable to the Supreme Court to ensure transparency of the powers of the Chief Justice in fixing cases and training judges.
On the other hand, the CJ is the master of the FCC list. The chief justice’s powers to decide cases and constitute benches are not regulated by the FCC.
It is interesting to note that two-member panels hear cases related to the interpretation of the law and the Constitution. Earlier, political parties had expressed concerns over the lack of representation of all provinces on the benches handling constitutional affairs.
Despite having 22,384 pending cases, only seven judges are currently serving at the FCC.
FCC judges also face a “perception battle” since they were appointed by the federal government, which is expected to be the primary litigator before the court.
The challenge now facing judges is to demonstrate that they do not have an “executive” mind and will dispense justice “without fear or favor.” The senior bars who have challenged the 26th Constitutional Amendment are not interested in filing petitions against the 27th Amendment.
