ISLAMABAD: Supreme Court’s judge, Justice Jamal Khan Mandokhail, remarked on Monday that it is not for the judiciary to consider whether a verdict would decrease or increase terrorism, as “controlling terrorism is parliament’s job, not that of courts”.
He stated this during the hearing of intra court appeals (ICAs) filed by the federal government and the Ministry of Defence against the apex court’s verdict on the trial of civilians in military courts, held before a seven-member constitutional bench headed by Justice Amin-ud-Din Khan.
Other members of the bench included Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, Naeem Akhtar Afghan, and Justice Shahid Bilal.
Khwaja Haris, counsel for Ministry of Defence, while continuing his arguments in rebuttal contended that the Army Act will be applied if a civilian damages a military installation or steals military property.
The counsel, citing judgments of former chief justice Saeed uz Zaman Siddiqui and other judges, asserted that if a civilian damages a military installation or steals a tank, the Army Act would apply.
Justice Muhammad Ali Mazhar, however, observed that lodging an FIR is a legal prerequisite for making any arrest. Justice Syed Hassan Azhar Rizvi added that after arrest, the accused must be presented before a relevant magistrate.
“But the main question is about the trial,” Justice Mandokhail observed to which the defence ministry’s counsel submitted that it is for lawmakers to decide where the trial will take place. Justice Mandokhail, however, inquired as to how FIRs are registered, who investigates them, and what the procedure is. He said the court wants to understand this process.
The judge noted that under Section 2(d) of the Army Act, a suspect only becomes an accused once charges are formally framed. Haris contended that the Constitution itself grants a unique jurisdiction to court-martials.
Justice Mandokhail then asked if it was the stance of the learned counsel that military courts do not fall under Article 175, then under which constitutional provision are they established. Haris replied that there are numerous court rulings regarding court-martials.
Justice Mandokhail emphasised that courts are only meant to determine whether a trial is in accordance with the Constitution or not. Meanwhile, the court adjourned the hearing for today (Tuesday) wherein defence ministry’s counsel Khawaja Haris will continue his arguments in rebuttal.