ISLAMABAD: The Supreme Court Constitutional Bench Thursday sought the details of civilian trials conducted so far by the military courts.
A seven-member bench — headed by Justice Amin-ud-Din Khan — heard the federal government as well as the defence ministry’s intra court appeals (ICAs) against the apex court judgment declaring civilians’ trial in military courts as unconstitutional. The other members of the bench included Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.
The bench directed Khwaja Haris, the defence ministry’s counsel, to provide complete details of the trials conducted so far.
The bench expressed interest in reviewing the procedure adopted during the trials with particular reference to the fair trial, as mandated under Article 10A of the Constitution, besides ensuring presentation of evidence as well as ensuring opportunity for the accused to hire counsel of their choice in line with the principles of natural justice.
Advancing his arguments, Haris submitted that if the bench declared the relevant sections of the Army Act as valid, then it will have to declare as non-maintainable all the pleas filed against the trial of civilians. “The petitions challenging the civilians’ trial are non-maintainable in the presence of Articles 8(3) and 8(5) of the Constitution,” the counsel contended.
He further contended that the five-member bench of the apex court [declaring as unconstitutional the trial of civilians in the military courts] did not examine correctly the point of maintainability of the pleas. Furthermore, he submitted that the court also could not review the trial record on merit and the sentences on the point of fundamental rights. Where Article 8(3) of the Constitution was applied, the point of fundamental rights came to an end. He claimed that the full procedure required by the law was adopted during the military trial.
Justice Naeem Akhtar Afghan observed that after making an amendment to the Army Act in 1967, Section 2(1(d) was inserted and introduced the term “any person” thereby expanding the scope of military courts to include civilians, including retired persons. “If this 2(1)(d) Section set aside by the apex court judgment is also upheld by this bench, it could invalidate the military trials of the all the retired officers, including FB Ali case,” he remarked.
He reminded Haris that in her note, Justice Ayesha A Malik had declared that none of the magistrates had cited reasons for handing over the accused into the military custody.
“If there is any speaking order passed by any magistrate, then place it on record,” Justice Afghan asked the counsel. Haris replied that those orders were part of the Supreme Court order and he will extensively argue on this matter.
Justice Naeem further observed that 28 accused persons were convicted under Sections 3 and 7 of the Continued on page 8s Act, while the FIRs lacked those sections of the Act. Khwaja contended that these sections could be added to the FIRs later on.
Justice Afghan further observed that the court would examine as to what was the Official Secrets Act before the amendment.
Justice Syed Hassan Azhar Rizvi recalled that the bench had earlier sought complete record of the military trials in order to see as to how the military courts decided the cases on evidence. Haris replied that he would provide the court with record of only one case for review.
Justice Muhammad Ali Mazhar observed that the court wanted to see whether all requirements of a fair trial were ensured during the trial. Justice Rizvi observed that the court only wanted to review the evidence presented during the trial saying under the natural justice nobody could be sentenced unheard.
Later, the court adjourned the hearing until Friday (today) after seeking complete details of the trials. The court directed the counsel for Ministry of Defense Khwaja Haris to provide details excluding those linked to the Indian national Kulbhushan Jadhav.
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