ISLAMABAD: The Constitutional Bench questioned why those persons who had launched attack on Army Public School (APS) were not tried under the Army Act.

A seven-member constitutional bench, headed by Justice Aminuddin Khan, on Wednesday, heard the intra-court appeals (ICAs) challenging the trial of civilians in military courts.

Justice Jamal Khan Mandokhail inquired about the handling of significant cases, like the 2014 APS attack, under the existing legal framework.

Lawyer of Ministry of Defence Khawaja Haris stated that the APS attack was linked to the military but was not tried under military courts. He said; therefore; 21st Amendment was introduced and changes were made in the Army Act to include the terrorist groups, organisations using religion, and the religious groups promoting hatred and wage war against the army and attack the military installations in the Army Act.

Justice Mandokhail said these groups and organisation were included in the Army Act for two years, but were not in the ambit of law before the 21st Amendment and after the two-year period.

Haris said the baseline in the 21st Amendment judgment is the nexus. Justice Mandokhail said if there was nexus between the civilians and army personnel in 9th May riots then why they (the army officers) were not tried under Army Act.

Justice Syed Hasan Raza Rizvi said that he had read a news item in the media that army officers were kidnapped for ransom, but later released. He questioned whether the kidnapping of army officers for ransom will be also tried in the military courts or not?

Haris contended that the entire judgment of Rawalpindi District Bar Association based on the fair trial under Article 10-A of the constitution. The judgment stated that the cases in the military courts could not be tested on the touchstone of Fundamental Rights, enshrined in the constitution.

Justice Muhammad Ali Mazhar said in this case they will see whether the trials of 105 civilians before the military courts were ultra vires the provisions of the constitution and the Army Act. “We don’t know what procedure was adopted in the military courts, whether the civilians were provided facilities to engage lawyer of his choice, it was allowed to cross-examine the prosecution witnesses, furnish evidence in support of the contention, and whether the accused were given right to deny the charges?”

“Whether the procedure laid down in Army Act was followed or not in letter and spirit,” he asked.

Justice Amin said there is no factual position or record before the bench that what had happened in the military courts for the trials of 105 civilians, arrested in the aftermath of 9th May incidents.

Justice Jamal Mandokhail asked whether the intention of the suspect would also be looked into by a military court. Justice Amin said a suspect could say during the trial that he did not have the intention to commit the crime. Concurring with him, Justice Mandokhail remarked that the suspect could say that he did not have the intention.

Haris argued if an act committed had been declared a crime under the Army Act, it merited a trial in a military court. He said the intentions cannot be looked at by the Court.

Upon that, Justice Rizvi said a chairman of Senate had shed tears in the Upper House, while expressing views on casting vote in favour of 21st Amendment. Justice Mandokhail remarked that might be at that time he had not realised what he was doing; therefore, he stated that his hands and feet were tied. The judge at the most what could have happened was that he may have lost his seat.

Justice Naeem Akhtar Afghan said that the judgment on 21st Amendment has discussed the word “intention”. He said that before the passage the bill might have been discussed in the Standing Committees of both the House, then it would have been debated in National Assembly and the Upper House.

Justice Mazhar noted; “The former SC judge Saqib Nisar, in his additional note, in the RDBA and 21st Amendment cases, wrote that constitutional amendment can’t be challenged in the courts.”

Ex-CJP Narsirul Mulk also had this view.

“There are no limitations, express or implied on the powers of the Parliament to amend the Constitution and the amendments brought about in exercise of such power are not liable to be challenged on any ground whatsoever before any Court,” retired Justice Nasir had said.

The case was adjourned until today (Thursday).

Copyright Business Recorder, 2025