ISLAMABAD: During the hearing of the case related to the trial of civilians in military courts, Justice Muhammad Ali Mazhar has said that military courts are not part of the judiciary. First, the judiciary should recognize the military court, then talk about separating it from the judiciary.
A 7-member larger bench headed by Justice Aminuddin Khan heard the case related to the trial of civilians in military courts, in which Abid Zuberi, the lawyer for former Supreme Court Bar, gave arguments.
Abid Zuberi told the court that the Attorney General had mentioned the violation of assurances to the court yesterday. The Attorney General’s written assurances are mentioned in the decision of the 5-member bench. The numbers of the various applications through which the written assurances were made are also part of the decision.
In his arguments, Abid Zuberi said that General Zia-ul-Haq conducted a military trial of FB Ali. General Zia-ul-Haq left FB Ali in 1978.
Justice Jamal Mandokhel remarked that what FB Ali was trying to do was done by Zia-ul-Haq.
Justice Muhammad Ali Mazhar said that the Army Act has provided a complete procedure for military trials. The procedure has protected fundamental rights. Failure to follow the procedure provided in the Army Act is a different matter. If the procedure is not followed, then its availability is of no use.
Justice Muhammad Ali Mazhar remarked that there are two objections to the military court. One objection is that military trials are not impartial, the second objection is that those conducting the trials do not have legal experience.
Lawyer Abid Zuberi said that the military court is part of the executive. To which Justice Muhammad Ali Mazhar inquired what the work of the army is. Where did the executive come from in the work of the army? Abid Zuberi replied that the work of the army is to fight on the border. Justice Jamal Mandokhel said that the work of the army is to defend the country.
Justice Muhammad Ali Mazhar said that do you recognize the military court as a judiciary? If the judiciary accepts it, the results will be different. If the military court is the judiciary, then it is the judiciary. Justice Muneeb did not call the military court the judiciary.
When the case was heard again after the break, lawyer Abid Zuberi further stated in his arguments that the court has declared in the decision that civilians cannot be court-martialed for crimes of a civil nature. Military courts are not part of the judicial system formed under the constitution. Trial in military courts can only be of those civilians who are part of the army. In the presence of Article 10A and Article 4, a court-martial of civilians is not possible. Under Section 23, sub-clause 3A of Article 8 does not apply to the accused.
Justice Muhammad Ali Mazhar remarked that the word “other persons” has also been used in sub-clause 3A of Article 8. In how many decisions have been made till date, there is no clarity on the military court.
Abid Zuberi said that in the presence of Article 10A, a military trial cannot be held.
Justice Muhammad Ali Mazhar asked where will the section with nexus be taken?
Justice Jamal Khan Mandokhel said that military court is not written in Section 2D. Section 2D has written trial on crime. It is not written what will be the forum of the trial.
Abid Zuberi told the court that the amendments regarding attacks on military installations have been included in military trial.
Justice Hassan Rizvi said that these attacks are still happening. Yesterday, there was an attack in Bannu Cantt. Justice Jamal Mandokhel said that if there is evidence, anti-terrorism courts also give punishments. Where are such cases being tried? If such cases were being tried in the anti-terrorism court, there would have been reporting.
Justice Muhammad Ali Mazhar said that first the military court should be recognized as a judiciary. First we will recognize it, then we will talk about separating the military court from the judiciary. The armed forces are not part of the judiciary.
Justice Jamal Mandokhel said that the word court martial has been used in the law, not military court. Justice Muhammad Ali Mazhar said that no court decision has declared that the military court is a judiciary.
The arguments of Abid Zuberi, the lawyer of the former office bearers of the Supreme Court Bar Association, have been completed and now the lawyer of the Lahore Bar, Hamid Khan, will begin his arguments from tomorrow.
Later, the court adjourned the hearing of the case related to the trial of civilians in military courts un
