Where trials of ‘civilians’ will be held if Sec 2(1) (d) of Army Act is removed, asks SC

ISLAMABAD: The Supreme Court questioned if Section 2 (1)(d) of Army Act, 1952 is removed then where the trials of civilians, involved in attacking military personnel or installations, and espionage cases, will be conducted?

A seven-member SC Constitutional Bench headed by Justice Aminuddin Khan, on Friday, heard intra-court appeals (ICAs) against the apex court’s decision on the trial of civilians by military courts. Justice Syed Hassan Azhar Rizvi said: “Almost every day military personnel or installations are attacked and 2 to 3 army men are martyred and the civilians also involved in such attacks then where their trials would be held.” He questioned if Section 2 (1) (d) of Army Act, 1952 is removed then where the trial of terrorists would be held, adding then how the families of the martyred army men would get justice. He asked the counsel do you want their cases to be tried in Anti-Terrorism Court (ATC)?

Justice Rizvi also questioned; “If a foreign spy is captured in the future, where should their trial be conducted?”

Advocate Khawaja Ahmed Hassan, representing former Chief Justice of Pakistan Jawad S Khawaja, replied; “The best way to respond to terrorists’ attacks is to hold their trial in ordinary courts and provide them fair opportunity, as this would establish courts credibility.” Upon that, Justice Rizvi smiled and remarked, “Oh really?”

Justice Muhammad Ali Mazhar asked, “Can Pakistan’s armed forces use Section 2(1) (d) (2) of the Army Act in the future?”

The lawyer replied, “The reality is that in future, this section cannot be applied.”

Justice Mazhar then asked how striking down Section 2 (1) (d) (ii) of the Army Act could impact the case of Indian spy Kulbhushan Jadhav, and future espionage cases. When the bench observed that the 21st Amendment was passed for the trial of terrorists, who attacked army’s installations in military courts, Khawaja Ahmed responded that it was only for two years, adding military courts should not be made permanent, and emphasised the need to develop criminal justice system. He then referred to the case of Liaquat Hussain.

Upon that, Justice Rizvi remarked that Liaquat Hussain was limited to Karachi, but now two-and-a-half provinces are affected by terrorism, where the civilians are involved in attacking military personnel and installations. He further said now there is no “Mukti Bahini”. The “Mukti Bahini” was a Bengali military force in East Pakistan, which fought against the Pakistan army.

Justice Jamal Khan Mandokhail said; “Our religion Islam emphasises justice and fair trial.” He said; “If we don’t convict 100 criminals, but sentence an innocent person then we would have to answer (about) this to Allah.”

“If a case is brought before us and there is no evidence against the person then how can we convict that person,” he added. He said there is no doubt that there is terrorism in the country, but it is the Executive’s job to deal with it. He remarked; “People say Pakistan’s judiciary ranks 129th out of 142 countries worldwide in rule of law index, but it does not mean (that) to improve ranking we start convicting innocents.”

Justice Rizvi stated that in the country though people see murder but no one comes forward to give witness in the court. The cases cannot be concluded due to adjournments, as sometimes a lawyer is sick, and sometimes a judge is not available, adding there is no protection for lawyers and witnesses; therefore, people do not give witness. He said unless drastic reforms are introduced, the criminal justice system would not improve.

Justice Mandokhail said though 21st Amendment was passed to curb terrorism, but it has not been reduced.

Kh Hassan argued that a day ago, the Ministry of Defence’s lawyer had read the rules, and tried to show that trial before the military court is fair and transparent. He submitted that in Field General Court Martial, the accused is not provided counsel of his choice. Justice Rizvi said Kh Haris had shown a case file of an (9th May) accused, which also contained power of attorney from a lawyer.

Kh Hassan contended that when the prosecutor, judge and jury are army then how can there be a fair trial. He argued that “ordinary civilians do not fall under the Army Act, which applies to Pakistan’s military personnel and civilian employees of the armed forces.”

Justice Rizvi inquired whether the Army Act applies to attacks on airbases. Justice Hilali questioned the difference between the 2014 APS attack and the May 9 protests, saying; “The APS attack was an act of terrorism, whereas, May 9 was a protest. What differentiates the civilians involved,” She remarked, “All the children killed in the APS attack were civilians.”

Kh Hassan explained that the APS attack led to the 21st Constitutional Amendment, enabling military trials of those responsible for terrorism. He submitted that the May 9 protesters should be conducted in ordinary court, and not in military courts.

The lawyer of ex-CJP referred to the May 9 statement issued by the ISPR, the media wing of the Pakistan Army. He stated; “ISPR released a statement on May 15 regarding the May 9 events.”

The bench asked do you have objections to the statement.

Kh Hassan responded; “I have no objection to the first part of the statement. However, the statement asserts that there is irrefutable evidence of the May 9 incidents. How can a military trial be fair after such a statement? If the military is a party in the case, how can it ensure justice?” The case was adjourned until Monday (February 3).

Copyright Business Recorder, 2025