ISLAMABAD: The registrar office of the Lahore High Court (LHC)’s Rawalpindi bench has cancelled the hearing of at least nine cases related to military personnel which were fixed for hearing next week (starting from January 15).
The LHC administration has formally informed the counsel namely retired Brigadier Wasaf Khan Niazi Advocate and retired Lt-Col Inamur Rahim Advocate about the cancellation of the cases.
The petitions were related to the court martial proceedings and against departmental actions by the armed forces.
The aggrieved personnel of the armed forces had filed the petitions in the LHC seeking relief against the departmental proceedings.
Petitions related to court martial proceedings and against departmental actions by armed forces
It may be noted that there is an ouster clause in the Constitution that bars high courts from hearing matters related to the military.
Article 199 (3) says: “An order shall not be made… on application made by or in relation to a person who is a member of Armed Forces of Pakistan or who is for the time being subject to any law relating to any of those forces.”
However, the superior courts can take up petitions where they observe some mala fide on part of the military authorities.
Mr Rahim had recently filed a petition in the LHC Rawalpindi registry against an additional registrar for not fixing 68 other cases related to the military for hearing.
These cases were filed in the LHC and were pending for adjudication. In 2014, the then LHC chief justice Umar Atta Bandial constituted a bench at the principal seat headed by Justice Mansoor Ali Shah and fixed the cases before it.
As per Mr Rahim’s petition, these “cases were taken up for hearing on October 31, 2014, and on December 5, 2014, by the larger bench…[where the petitioner] pleaded that transfer of cases from Rawalpindi Bench to principal seat, by the Chief Justice was illegal…without giving notice/audience to petitioners and secondly in all the 68 cases the respondents were stationed at Rawalpindi within the territorial jurisdiction of Rawalpindi bench.”
The petition contended that the bench reserved the order after hearing the arguments and did not announce it for more than two years which was a violation of Article 37 of the Constitution and the National Judicial Policy (NJP).
On November 10, 2016, the LHC bench announced its order and these cases were transferred back to the Rawalpindi registry and placed before a three-member bench.
“However the cases are still unheard even after three years because the same are clubbed together by the order of the chief justice despite the fact that law and facts of each case are far too different,” the petition claimed.
Explained the reason for delay, it said: “These cases were always placed at the end of the cause list and their turn of hearing never comes up and resultantly on every date of hearing the cases are left over and due to their inordinate delay half dozen such cases were hit by the influx of time and became infructuous.”
The petition said, “as per High Court Rules and Orders, if once the case is left over due to paucity of time, then after two weeks, the leftover cases would be fixed automatically at number 1 after the urgent cases, whereas, in those 68 cases different treatment was meted out and they were always fixed at the last of the cause list therefore, those cases never came up for hearing till date.”
It stated that “out of those 68 cases two writ petitions went missing at the principal seat and the petitioner filed [application]… to locate the fate of missing petitions but due to obvious reasons [application] could not come up for hearing till date.”
Published in Dawn, January 14th, 2018