ISLAMABAD: The Supreme Court is hearing an intra-court appeal against the decision to try civilians in military courts, during which Justice Musarat Hilali has remarked that the trial of civilians in military courts was for the trial of criminals like APS, can all civilians be treated the same as in the APS tragedy?
A 7-member constitutional bench headed by Justice Aminuddin Khan is hearing the case of military courts in the Supreme Court.
Defense Ministry lawyer Khawaja Haris began the arguments and took the position that the basis of the court decision is Article 8(5) and 8(3), the two sub-articles are completely different, they cannot be combined.
Justice Jamal Mandokhel remarked that this point of yours has been understood yesterday, now let’s move on and complete the remaining arguments.
Khawaja Haris read the decision declaring the military trial of a civilian null and void and said that it had been decided in the FB Ali case that a civilian could also be tried in a military court, Articles 83 and 85 were misinterpreted in the majority decision.
Justice Jamal Mandokhel said that let’s see whether we agree with you on this or not, Khawaja Haris said that it was said on the basis of misinterpretation that the FB Ali case was of a different nature, FB Ali was tried after his retirement when he was a civilian.
Khawaja Haris took the position that the decision said that he was not retired at the time of the crime, so his case is different, Justice Jamal Mandokhel remarked that in the present case, the accused of May 9 do not belong to the armed forces, nowadays there is a term for ex-servicemen, they were not even ex-servicemen, let’s just use the term civilian.
Justice Jamal Khan Mandokhel said that the question is to what extent can a civilian be tried in military courts, Justice Musarat Hilali remarked that the trial of a civilian in military courts was for the trial of criminals like APS, can all civilians be treated the same as in the APS incident, the constitution of Pakistan is not suspended.
The lawyer of the Ministry of Defense said that fundamental rights remain, there are court decisions in this regard.
Justice Muhammad Ali Mazhar said that tell us what is the international practice regarding military courts, the lawyer of the Ministry of Defense took the position that I will present examples at the international level.
Justice Jamal Khan Mandokhel said that our soldiers are being martyred on a daily basis, we feel for the martyrs, the question is why the cases of these martyrs are not being tried in military courts, if someone is just thinking, will a case be tried against him in military courts, the question is which cases will be tried in military courts under clause 3 of Article 8.
Justice Naeem Akhtar Afghan spoke to Khawaja Haris that Khawaja Sahib, it seems your preparation is not complete, he remarked that the 5-member bench has nullified some sections of the Army Act, if we also keep these sections nullified then there can be no military trial of civilians, if we reach any other conclusion, we will have to decide which civilians can have a military trial.
Justice Naeem Afghan further said that now the Official Secrets Act has also been amended in 2023, tell us in the light of this amendment, yesterday Justice Jamal Mandokhel asked the question by giving the example of a military post.
Justice Jamal Mandokhel said that the authority of Parliament is undoubtedly, let the law tell us what is a crime, if Parliament wants, it can make a law tomorrow. Looking sideways is a crime, it is also the constitutional responsibility of Parliament to establish a court where the trial of this crime will take place, the Constitution of Pakistan gives this authority and responsibility to Parliament, it is said that Parliament is supreme, I think the Constitution is supreme.
Along with this, the Constitutional Bench of the Supreme Court adjourned the hearing of the Military Courts case until tomorrow.
Justice Muhammad Ali Mazhar asked the Additional Advocate General Punjab to tell the Military Courts case, are the facilities being provided to the accused kept in jail under the Jail Manual? The Additional Advocate General Punjab replied that 27 accused were brought to the Lahore jail, 2 accused were released, and meetings were held twice in the last ten days under the jail manual.
The Additional Advocate General said that the accused are also allowed to provide home-cooked food, meetings are also being held and home-cooked food is also being provided.
Justice Muhammad Ali Mazhar spoke to Hafizullah Niazi that Niazi Sahib, you were saying that these accused are being kept in worse conditions, Hafizullah Niazi said that these accused are being kept in solitary confinement, the accused are not being taken out of their cells.
Justice Muhammad Ali Mazhar said that are you saying that each prisoner should be given a separate room? Justice Jamal Mandokhel said that I have spent 14 days in jail as a lawyer. After the Fajr prayer in the morning, I am taken out of the cell. If the prisoner wants, he can sunbathe or roam around in the allocated premises.
Justice Hassan Azhar Rizvi smiled and said that Jamal Mandokhel sir, you must have received concessions as a lawyer.
The Additional Advocate General said that I have been in Bahalpur Jail with Justice Shahid Bilal Hassan, a member of the bench. Justice Muhammad Ali Mazhar said that Punjab should not reveal old secrets here anymore. Justice Aminuddin Khan remarked that we will look into this matter on a daily basis. If someone has to be sent to jail, we will send them.
Hafizullah Niazi said that meetings with lawyers are not being allowed, only meetings with parents and wives are being arranged.
Justice Musarrat Hilali said that when I was the Chief Justice in the Peshawar High Court
