ISLAMABAD: The Supreme Court questioned why Pakistan Tehreek-e-Insaf (PTI) did not oppose amendments in the Army Act for the trial of those involved in Army Public School (APS) carnage by military courts.
A seven-member SC Constitutional Bench headed by Justice Aminuddin Khan, on Thursday, heard intra-court appeals (ICAs) against the apex court’s decision on the trial of civilians by military courts.
During the proceeding, Justice Mussarat Hilali observed that after the event of terrorist attack on Army Public School (APS) some amendments were made in the Army Act, 1952, and though PTI was in opposition but it supported amendments for the trial of persons, involved in APS attack, by military courts.
Why accused in APS attack case were not tried under Army Act, asks SC
She asked Raja why the political parties when they are not in power raise concerns over unfair trials and non-transparency in the military courts. Justice Hilali asked why at that time it was deemed fit that the persons involved in APS massacre should be tried by the military court and not the Anti-Terrorism Courts.
Salman Akram Raja, the lawyer for one of the convicts, Arzam Junaid, responded that he was pleading not for a political party but for the justice of his client, adding despite the amendments made in 2015 and 2017, “still the mothers of APS martyrs are running from pillar to post for justice”.
Justice Hilali also inquired from Raja “Do you accept that offence committed on that day [9th May].” She further said, “On that day, the protesters crossed all the limits”. Raja, instead of giving a straight answer, said that the Court can give a decision on the basis of Articles 9 and 10A of the constitution.
Justice Amin questioned how on the basis of misuse of a law it could be struck down. He noted that blasphemy law is misused then can the court strike it down? He then said if the same crime is committed by a member of the armed forces and the civilians then the punishment should also be the same for both persons.
Raja, arguing the case, pointed out flaws in the trial of military courts. He contended that this is the only court (military) where on mere allegations the accused is deprived of his fundamental rights, and fair trial. There is no appeal against the order of the commanding officer. He said that the trial should be conducted by judges and not army officers.
Justice Syed Hasan Azhar Rizvi asked the counsel are you suggesting that like the Engineering and Medical Corps in the Pakistan Army there should be a legal corps too? Raja replied that in the UK they have appointed civilian judges for trial in court martial.
Raja argued that “treason” is the biggest crime in Pakistan, but for its trial a Special Court is constituted where judges of High Courts conduct the proceedings. Raja told that he is being accused of hatching conspiracy with Pakistan Tehreek-e-Insaf founder Imran Khan to murder three Rangers on November 26, 2024 in Islamabad. “I was not aware of the incident and came to know about it after three days as I was in Lahore, but the FIR was registered against me that I made a plan for murder of Rangers.”
Justice Jamal Khan Mandokhel inquired whether the 9th May event was more heinous than the killing of 57 lawyers in Quetta. He remarked that the trials of those involved in lawyers’ killing were held in Anti-Terrorism Courts.
Justice Mandokhel admitted that they have some issue in the ordinary criminal justice system, as many accused are freed on the basis of not enough evidence, and people are scared to appear as witnesses as there is no protection for witnesses, lawyers and even judges.
Salman Akram Raja argued that in the FB Ali case, the judges did not strike down Section 2(1)(d) of Army Act as there was no Article 10A in the Constitution, which guarantees due process and fair trial. He said independent courts are relevant for due process, adding due process necessitates one or two appeals. He stated that due process is not possible before the ad hoc tribunal, as because of not fixed tenure they cannot provide justice.
Justice Hilali questioned whether it ever happened that promotion of a presiding officer of a military court was halted because of his order to acquit some accused.
The case is adjourned until 18th February. Salman Akram Raja would continue his arguments.
Copyright Business Recorder, 2025
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