ISLAMABAD: The Supreme Court on Friday told the government that there should be no trial of persons arrested as a result of the May 9 incidents without informing the court.
Chief Justice Umar Ata Bandial cautioned Attorney General for Pakistan, “If he goes against his words then we will call the concerned person,” and told him there should be no trial of persons without informing the Court. He, however, expressed satisfaction over the cooperation of the government regarding the instant matter.
He asked the petitioners’ lawyers to relax as no trial has commenced. Reacting to Sardar Latif Khosa’s remarks, the chief justice said: “This is not Ziaul Haq’s era and there is no Martial Law in the country.” “If Martial Law like situation arises then we will interfere,” the CJP added.
Military trials: SC adjourns hearing till Friday
Earlier, Khosa, representing Chaudhry Aitzaz Ahsan, one of the petitioners, stated whatever has been happening in the country today, had taken place during the tenure of former military dictator Ziaul Haq. “Still the list of 102 persons has not been provided. Families and counsels are not allowed to meet them.” He said there is a concern about due process and the fundamental rights of the persons in custody.
A six-member bench, headed by the chief justice, and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Ayesha A Malik heard the petitions against the trial of civilians by the military courts.
At the onset of the proceeding, AGP Mansoor Usman Awan explained the procedure of trial conducted under the Army Act 1952. He informed the court that so far, the investigation is conducted there is no case that entails death sentence and life imprisonment. Under Section 7 of the Official Secrets Act, there is only two years’ sentence. He said Section 3 (a) of the OSA will not apply. The chief justice remarked that you mean to say that no case of an aggravated offence.
The attorney general explained if there is a case of Section 3(a) then it will fall under Section 3(b). Justice Ayesha questioned the AGP how can you say at this stage that there is no case of death sentence, while the trial has not commenced yet.
Justice Afridi asked the AGP that according to you prima facie as far as the inquiry conducted under Rule 13 of the Army Act there is no case of death sentence and even if the charges are of Section 3(a) then those would be treated as charges under 3(b) of the OSA.
The AGP also assured the bench that the reasons will be recorded in the military courts’ verdict. He said that the accused persons will be allowed to engage private counsel of his choice. About the appeal against the military courts’ judgment, he said the right of appeal against the final decision of the Court Martial was introduced in the Army Act through an amendment in 1992. The appeal within the army system is heard by an army officer to the rank of Major General.
He explained that after this procedure the accused can challenge the verdict of the military court under Article 199 of the constitution on three grounds (mala fide, coram non judice, and without jurisdiction) laid down in the Rawalpindi District Bar Association case. The persons then can approach against the high courts’ judgments under Article 185 of the constitution.
He said as far as the appeal before the judicial forum or retired judge as happens in India is concerned more consideration is required, as there is the case of Kulbushan Yadav tried under 2 (1) (d) of the Army Act and people held on espionage charges, and there is also the matter of international implication.
The AGP sought one month to consider the aspect of providing appeal before ordinary courts, as it may be done through legislation. The chief justice allowed the government to continue with the inquiry under Rule 13 of the AA but directed not to hold trials of those persons arrested in light of the May 9 incidents.
The chief justice said if the attorney general statement given before the Supreme Court is disregarded then they will summon the relevant authority.
The attorney general said that proceedings will be held in open court but only the family members and the counsel will be allowed. He told that the protesters are being kept in rooms and not in hardened or inhuman conditions and all facilities are accorded, which are given to a person in detention.
The chief justice questioned: is it possible that a group of lawyers can visit them? The attorney general responded that it may not be possible, and told the chief justice that he would tell him in the chambers. The chief justice said: “We appoint a retired judge to visit them and examine the condition whether that is fair and in accordance with the law.”
The attorney general asked the bench to grant one month to deliberate on providing appeal, saying there is an international aspect and the many complications involved. Justice Munib said the tenure of the National Assembly is ending in August then how it can pass the law. The case was adjourned without notifying the next date.
Copyright Business Recorder, 2023
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