Army chief’s plane hijacking case trial wasn’t by military court: SC judge

ISLAMABAD: Justice Musarat Hilali, a member of the Supreme Court’s seven-judge constitutional bench, remarked on Friday that an army chief was forced to leave the country by turning off lights of the airport, and a martial law was imposed in the country consequently, but even then the case was not tried in a military court.

The constitutional bench, headed by Justice Aminuddin Khan, was hearing the federation’s intra-court appeals (ICAs) against the apex court judgment, declaring trial of May-9 suspects in military courts unconstitutional. Other members of the bench included Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.

Justice Hilali observed that at the time of that incident, the plane had little fuel but it was put to risk. She recalled the defence ministry counsel Khawaja Haris had given an example that military trials were conducted in America also. “If such a trial is held in another country, who is the judge there,” Justice Hilali asked, while Justice Muhammad Ali Mazhar remarked that all over the world, only officers sit on court martial.

Khawaja Haris submitted that the officers who sit on the court martial possess trial experience. Justice Muhammad Ali Mazhar, however, asked the counsel that Justice Hilali was asking whether those officers had legal qualifications?

At this, Justice Musarat Hilali said if she could ask the question herself.

Khawaja Haris, however, submitted that hijacking was not mentioned as a crime in the Army Act; hence, there was no military court trial in plane hijacking case. The counsel submitted that the Supreme Court had reviewed the case and held that there was enough fuel left in the plane.

Justice Aminuddin Khan then remarked, “Let’s move on”, adding that the difference had become clear on that point.

Justice Musarat Hilali, however, put another question to the counsel that if a military aircraft was hijacked, then where will the trial take place?

She observed that in the FIRs of May 9, all provisions of the Anti-Terrorism Act (ATA) were mentioned. “I don’t know how the military trial was conducted on these provisions,” Justice Hilali added.

The additional attorney general, representing the federation, however, submitted that the military courts took only those 105 accused whose presence at the crime scene was proven, but the number of accused was around five thousand.

Khawaja Haris, counsel for the defence ministry, continued his arguments and answered some of the questions, raised the other day by the bench.

During the course of hearing, the bench members again questioned the trial of May-9 suspects in military courts as well as the expertise of the officer announcing verdicts even regarding death sentence.

Justice Mandokhel asked Khawaja Haris to convince the court on the procedure adopted by the military court during the trial.

Justice Musarat Hilali remarked that the officer, who conducts the trial, does not pronounce the verdict himself in the court, adding that the officer conducting the trial sends the case to another senior officer, who pronounces the decision. “How can the officer who has not heard the trial give the decision,” Justice Hilali asked. Khawaja Haris replied that the Judge Advocate General (JAG) Branch assists in writing judgments.

Justice Mandokhel said, “I have been in this profession for thirty-four years, but still I do not consider myself complete. Does this army officer have so much experience and knowledge that he pronounces even the death sentence?” Justice Mandokhel asked.

Khawaja Haris, however, submitted that he would explain in detail the procedure of the military trial in second part of his arguments.

Justice Mandokhel remarked that there was a difference between the Army Act and the rest of the law, as per the Constitution it provides protection to all fundamental rights and the law has given a reasonable explanation as well.

Justice Naeem Akhtar said he had also heard many court martial cases in Balochistan.

Justice Hasan Azhar Rizvi remarked that there was a defence lawyer in a court martial; there are no judges.

Replying to question, posed by the bench the other day, Khawaja Haris submitted that the trial of Kulbhushan Jadhav was also conducted in military court, adding that even the trial was recognised by the International Court of Justice.

Similarly, Haris contended that the high courts had entertained the appeals against the sentences, awarded by the military court in terrorist cases.

The counsel further submitted that the decisions of military courts could not be challenged on the point of fundamental rights.

Justice Naeem Akhtar asked the counsel to shed light on the Article which talked about fair trial and basic human rights. “How the trial is being done in military courts: what are its stages, tell us everything in detail,” Justice Naeem Afghan asked the counsel.

Khawaja Haris contended that the Army Act was a special law and special laws had different procedures of evidence and trial.

Justice Naeem Afghan remarked that in the court martial, there was also the facility to be a lawyer of one’s will, the trial of the military courts was also the same as the ordinary court.

Justice Hasan Azhar said: “I have been appearing as a lawyer in the military court. An officer is also appointed as a friend, along with the lawyer for the accused.”

Justice Mandokhel asked the counsel as to whether the officer sitting in the military court was so perfect that he could decide such a severe punishment?

Later, the court adjourned the hearing until Monday, January 13, wherein Khawaja Hari would continue his arguments.