Islamabad: In the case of trial of civilians in military courts, Justice Jamal Mandokhel has remarked that after the decision of the Anti-Terrorism Court, the accused became subject to the Army Act.
A 7-member constitutional bench of the Supreme Court headed by Justice Aminuddin Khan heard the case related to the trial of civilians in military courts, in which civil society lawyer Faisal Siddiqui gave his arguments.
While giving arguments, the lawyer said that the question is not how the 105 accused were selected for military trial, the real issue is whether the law allows it.
Justice Aminuddin Khan said that the extradition of the accused is a matter of record. Have you challenged Section 94 of the Army Act? To which the lawyer replied that the crime was not determined at the time of extradition of the accused. The unlimited discretionary power of Section 94 has also been challenged.
The lawyer said in his arguments that the authority of the officer who decides on the military extradition of the accused is unlimited. The authority of the Prime Minister is not unlimited in this country. The powers to extradite the accused should be structured.
Justice Hassan Rizvi asked whether the police investigation was short and the military investigation was fast? Was the material available at the time of the extradition of the accused? To which lawyer Faisal Siddiqui said that whether the material was on record or not is not an issue. The whole root is the unlimited power to extradite the accused. The commanding officer applies for extradition under Section 94.
Justice Jamal Mandokhel asked whether the Anti-Terrorism Court can reject the extradition request? To which the lawyer replied that the court has the power to reject the extradition request of the accused.
Justice Aminuddin Khan said that this defense could have been adopted by the accused in the Anti-Terrorism Court or in the appeal. Justice Muhammad Ali Mazhar said that the Anti-Terrorism Court had not even issued notice to the accused. The court made its own decision after the commanding officer’s application was received.
Justice Jamal Mandokhel said that Section 94 will apply to those who are subject to the Army Act. After the decision of the Anti-Terrorism Court, the accused became subject to the Army Act. The anti-terrorism court could have rejected the commanding officer’s request.
Lawyer Faisal Siddiqui argued that the decision to hold a court martial should have been made before the extradition of the accused. If the court martial decision was not made, how could the accused be extradited?
Justice Hassan Rizvi asked whether the reasons for the extradition were stated in the commanding officer’s request? To which the lawyer replied that no reason was stated in the commanding officer’s request. Justice Naeem Afghan said that the reasons were stated in the extradition request of the accused. The request stated that the accused were charged with offences under the Official Secrets Act.
Justice Jamal Mandokhel remarked that the procedure for registering a complaint under the Official Secrets Act is clear in the Criminal Procedure Code. The application goes to the magistrate, who records the statement and decides whether an investigation should be conducted or not.
Lawyer Faisal Siddiqui argued that the application could also be in the form of an FIR. It is settled that only the federal government can file an application under the Official Secrets Act. No private person can apply under the Official Secrets Act. A complaint under the Official Secrets Act is also possible under the Army Rules.
Justice Jamal Mandokhel said that according to the Army Rules, an investigation is carried out first, but there must be a complaint for an investigation.
Justice Jamal Khan Mandokhel asked whether the discretion of the executive has not ended after Article 175? After Article 175, the question of discretion ends. To which the lawyer replied that if my argument is accepted, the trial will be null and void, not the law. If the trial is null and void, the cases in which the sentences are pending will be transferred to the Anti-Terrorism Court and the cases in which the sentences have been implemented will be called a pass-and-close transaction.
Justice Muhammad Ali Mazhar asked that if the cases are transferred from the military to the court, where will the trial start? Will the trial start with the recorded evidence of the military trial?
Justice Aminuddin Khan remarked that the argument of past and close transaction will not validate the military trial?, to which lawyer Faisal Siddiqui replied that the military trial was challenged in the Supreme Court due to the application of Article 245.
Justice Aminuddin Khan said that Article 245 was not applicable on May 9. When the applications were filed, Article 245 had been applied.
Later, the court adjourned the hearin
