Justice Muhammad Ali Mazhar of the Supreme Court’s Constitutional Bench on Monday wondered how case trials would proceed if civilian cases were transferred from military courts to regular ones.
The query came as a seven-judge bench, headed by Justice Aminuddin Khan, took up a set of intra-court appeals against the Oct 23, 2023, five-judge order of nullifying the trial of civilians by military courts involved in the May 9 violence.
“Will the trial start from the recorded evidence of the military trial?” Justice Mazhar inquired.
Advocate Faisal Siddiqui, representing the petitioners, argued that question at hand was not how 105 accused were selected for military trials, but whether the law allowed it or not.
Justice Khan pointed out that the handing over the the custody of the accused was a matter of record. “Have you challenged Section 94 of the [Pakistan] Army Act?” the judge asked the lawyer.
To this, Siddiqui replied that the crime was not determined at the time of the extradition of the accused and the unlimited discretion of Section 94 was challenged.
He added that the authority of the commanding officer, who initiated a handover request, was unlimited.
“Even the authority of the prime minister in this country is not unlimited, Advocate Siddiqui said, adding that the authority to hand over the custody of the accused should be structured.
“Was the police investigation slow and the military investigation fast?” Justice Hassan Azhar Rizvi asked. “Was the material available at the time of extradition of the accused?”
To this, Advocate Siddiqui said: “The issue is not whether the material was on record or not. The whole crux is the unlimited power to extradite suspects.”
Justice Jamal Mandokhail asked if the anti-terrorism court (ATC) could reject an extradition request.
Advocate Siddiqui responded that the court had the power to reject an extradition request from the accused.
Justice Khan noted that this defence could have been adopted by the accused in the ATC or in the appeal.
Justice Mazhar remarked that the court had not even issued a notice to the accused. “The court made its own decision on the request of the commanding officer.”
Justice Mandokhail observed that Section 94 would apply to those who were subject to the Army Act.
“The accused became subject to the Army Act after the ATC’s decision,” he remarked. “The ATC could have also rejected the request of the commanding officer.”
To this, Advocate Siddiqui said that the decision of whether the accused would be court-martialed or not had to be made before their custody was handed over to the military.
“If the decision of court martial is not made, how can the extradition of the accused be carried out?” he asked.
Justice Rizvi asked whether the reasons for extradition were stated in the commanding officer’s request, to which Advocate Siddiqui replied in the negative.
Here, Justice Naeem Akhtar Afghan added that the reasons were stated in the accused’s request for extradition. “It was stated in the request that the accused was charged with offences under the Official Secrets Act.”
Justice Mandokhail said that the procedure for filing a complaint under the Official Secrets Act was clear in the Criminal Procedure Code, adding that the application went to the magistrate who recorded the statement and decided whether an investigation should be conducted or not.
Advocate Siddiqui noted that the request could also be in the form of a first information report (FIR).
“This much is settled that only the federal government can file an application under the Official Secrets Act,” he said. “A private individual cannot file an application under the Official Secrets Act.”
He noted that according to the Official Secrets Act, a complaint is also possible under Army Rules.
Justice Mandokhail observed that according to Army Rules, an investigation was conducted first, but a complaint was also required for an investigation.
“After Article 175, does the domain of the executive not end?” Justice Mandokhail said asked. “After Article 175, the question of jurisdiction ends altogether.”
Advocate Siddiqui contended that if his argument was accepted, the trial would be null and void, but not the law.
“If the trial is null and void, the cases in which sentences are pending will be transferred to the ATC.
“The cases in which the sentences have been implemented will be called past and close transactions.”
Justice Khan noted that the arguments of the past and close transactions would not validate military trials.
“A military trial was challenged in the Supreme Court due to the application of Article 245,” Advocate Siddiqui said.
To this, Justice Khan replied that Article 245 was not applicable on May 9. “When the petitions were filed, Article 245 was applicable.”
The hearing was adjourned till tomorrow, when Advocate Siddiqui will continue his arguments.
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