ISLAMABAD: Justice Muhammad Ali Mazhar has categorically stated they would not allow another trial of those accused who have been tried by the military courts in light of 9th May riots.
A seven-member SC Constitutional Bench, headed by Justice Aminuddin Khan, on Wednesday, heard intra-court appeals (ICAs) against the apex court’s decision on trial of civilians by military courts.
Faisal Siddiqui, representing the members of civil society, submitted that the judgment of five-judge bench has raised this point that how the accused were handed over to military authority without framing of charges.
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Justice Jamal Khan Mandokhel said all the five judges of the Supreme Court were unanimous in their decision that civilians cannot be tried in military courts.
Faisal then said according to their judgment a person become accused after framing of charges, adding the transfer of civilians’ custody is the violation of Section 549 of Code of Criminal Procedure and Sections 29, 30 and 32 of Anti-Terrorism Court Act.
However, Justice MussaratHilali dismissed his argument, saying a person becomes an accused if an FIR is registered against him, adding after framing of charges the trial commence and evidence is present. She said that the police arrest the people in cases where FIR is registered under cognisable offence. She remarked that in Army Act instead of accused the word “offender” is used.
Justice Hilali said those offences are tried in Anti-Terrorism Court (ATC) where there is element of fear, but in the instant matter people attacked an institution and we have watched the tragic incidents at our homes on TV channels.
Faisal Siddiqui argued even if it is accepted that 9th May incidents are the worst crime, but the procedure of law should have been followed. He questioned whether 103 persons, tried by the military courts, were ever charged by the magistrate before handing their custody to army authorities, if not then the transfer is illegal and assuming of jurisdiction by the military court is unlawful. Upon that, Justice Mazhar said; “It will not happen that the accused who have been tried under the Army Act, will now be tried under the Sections of Pakistan Penal Code and Official Secret Act, 1923 before another courts.”
Faisal argued that they donot want that the court strike down the law, but wanted restricted interpretation in a way to protect the civilians’ fundamental rights.
He argued there are number of occasion where the Supreme Court has restricted the scope of Army Act. The nexus is not in the law, but this word was developed by the apex court in various judgments. The Balochistan High Court has always delivered bold judgment against the military intervention.
He contended that power of interpretation is more powerful than to strike down a law. “Wherever the Courts have seen the militarisation they have always came to the recuse of the civilians.” “We have full confidence in all our judges,” he added.
Faisal argued that he was not seeking to strike down provisions of Army Act, but demands to strike down the trial of civilians under Article 8(2) of the constitution. Upon that, Justice Afghan said for this reason he had asked the federation to show us the speaking order of handing over of 103 accused to the military authority. Justice Mazhar remarked there is order of magistrate, but not the speaking order.
The civil society counsel, earlier, argued that there had been three separate decisions by a five-member bench regarding military courts.
He pointed out that Justices Ayesha Malik, MuneebAkhtar, and YahyaAfridi had written individual decisions, but all judges agreed on the core observations. Siddiquiem-phasised that when judges’ decisions align but their reasoning differs, all the reasons are considered part of the overall decision.
However, he maintained that all justices were in agreement on the key issue that civilians should not be tried under military jurisdiction. Siddiqui explained that when different judges write separate opinions in the same case, their reasoning collectively forms part of the final verdict. He dismissed arguments suggesting that the decisions were divided.
Justice Mazhar pointed out that the justices had written detailed rulings rather than supplementary notes. Justice Mandokhail stated that all five judges were in consensus against military trials for civilians.
The case was adjourned until today (Thursday).
Copyright Business Recorder, 2025
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