Trials under Army Act: SC for making case record public if no state secret involved
ISLAMABAD: The Supreme Court proposed that if the record of those who attacked military installations and were tried under Army Act was made public then people at large would know what crimes they had committed.
A seven-member Constitutional Bench, headed by Justice Aminuddin Khan, on Wednesday heard intra-court appeals (ICAs) against the apex court’s decision on the trial of civilians by military courts.
Justice Rizvi questioned in cases where no State secret is involved, why the army doesn’t makes their record public, as done by the ordinary courts, whose judgments are published in the law journals. He proposed that if the verdicts of those who had attacked and vandalised military installations (on 9th May) are made public then at least people at large would know what crimes they had committed.
Advocate Khawaja Haris, representing the Ministry of Defence, briefed the constitutional bench about the rules and procedure adopted by military courts for trial. He said there are many safeguards in the trial of military courts.
Justice Naeem Akhtar Afghan said when he was the chief justice of Balochistan High Court then he had a chance to examine the record of Court Martial proceedings. He said it is not right that at the end of trial it is written on a plain paper that the “accused is guilty or not guilty”, adding the fact is that complete procedure is adopted and the military court’s judgment contains the statements of the accused and witnesses, cross-examination notes and the evidence provided by the accused in his defence.
Justice Hasan Azhar Rizvi inquired whether the relatives or friends of the accused are allowed to be present during the trial before the military court. Khawaja Haris said the law allows, but practically it does not happen. Justice Rizvi then asked whether the presiding officers of military courts have any experience of conducting trials. Justice Mandokhail remarked that the sessions’ judges, who conduct murder trials, not only have a law degree, but have 20 years experience.
Khawaja Haris responded that it is not necessary for the presiding officer to have experience of trial, as he decides the matter on the basis of facts, placed before him, and not on the basis of law. He submitted that the military courts are not regular and permanent, but are set up when the cases are brought under Army Act.
Upon that, Justice Mandokhail stated now a days people are trained so much that two persons comment on the judgment of eights judges, and declare their verdict unlawful and wrong. Justice Mussarat Hilali said; “We do not have affiliation with any institution or political party despite that some people try to tag us to an institution or party.” We are facing unbridled society, she added.
During the proceeding, when Justice Mandokhail was raising questions, Justice Hilali on a lighter note remarked: “It appears that after retirement Justice Mandokhail likes to conduct military cases.”
The bench questioned when a certified copy of the order/ judgment is not provided to the accused or his counsel then how come he can better defend himself before the military courts. Khawaja Haris replied that the case record is for archive. He said though the record of the case is not provided to the accused but he or his counsel is allowed to examine them.
Khawaja Haris said though the law specifically does not have provision for providing counsel at the State expenses, but practically is done that if a civilian accused is unable to engage counsel then a lawyer is provided to him. He then explained how the first six cases were transferred from Magistrate to military courts.
After the tea break, Khawaja Haris, in a sealed envelope, provided a file of a case, conducted by the military courts, to the bench members. However, the judges without examining returned the envelope to the counsel, saying they cannot see it at this stage, as this case might be filed before them in future.
The Ministry of Defence’s counsel argued that the military courts are independent and impartial. Justice Mandokhail maintained that under Article 175 of the Constitution, the Supreme Court, High Court and many other courts have been set up, adding every court is independent if that is separate from the Executive. He said; “Justice must not only be done, but it must be seen to be done.”
Khawaja Haris contended that all the judgments of the Supreme Court say that Article 175 does not apply to the military courts, adding if Article 175 is complied stricto sensu then the trial of army personnel under Army Act would also not take place, and the military courts cannot function.
Justice Muhammad Ali Mazhar noted that most of the provisions in Army Act have been taken from Code of Criminal Procedure (CrPC) and Qanoon-e-Shahadat. He questioned whether the rule of transparency really applies in military courts trials or it is only in the Army Act and Army Rules.
Khawaja Haris replied that before conducting a trial the presiding officer takes oath. The statements of the prosecution witnesses are provided to the accused counsel in advance, adding no investigation is carried out behind the back of the accused.
The case was adjourned until today (Thursday).
Copyright Business Recorder, 2025
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