- Justice Mandokhail asks if ATC had authority to deny custody.
- Justice Amin inquires about judicial authority over case dismissals.
- Court adjourns hearing on military trials of civilians until tomorrow.
ISLAMABAD: Supreme Court’s Justice Muhammad Ali Mazhar on Monday inquired about the stage from where the trials of civilians would resume if the cases are transferred from a military court to an anti-terrorism court (ATC).
The query was raised during the hearing of intra-court appeals against the military trial of civilians before a constitutional bench of the top court.
The bench, led by Justice Amin Uddin Khan and comprising other judges including Justice Mazhar, Justice Jamal Khan Mandokhail, Justice Hassan Azhar Naqvi and Justice Naeem Afghan, heard arguments from civil society’s lawyer Faisal Siddiqi, who contended that the core issue was not how 105 suspects had been selected for military trial but whether the law allowed military trials at all.
Justice Amin noted that the transfer of suspects was a matter of record and asked whether the lawyer had challenged Section 94 of the Army Act.
Siddiqi responded that at the time of the suspects’ custody, their crimes had not yet been determined, and that the unlimited discretionary power granted under Section 94 had also been challenged.
He argued that a commanding officer initiates a handover request under Section 94, and that the officer making the decision has unlimited authority, unlike the prime minister, who has limited powers. He stressed that there should be a structured framework for such powers.
At this, Justice Naqvi questioned whether police investigations were slower compared to military trials and asked if sufficient evidence existed at the time of the suspects’ handover. Siddiqi replied that the presence or absence of evidence was not the issue, but rather the absolute authority in transferring suspects.
Here, Justice Mandokhail asked whether an ATC had the authority to reject a handover request. To which, Siddiqi responded in affirmation. Justice Amin then remarked that such a defence on the suspects’ behalf could have been pursued before the ATC or in an appeal.
Meanwhile, Justice Mazhar asked whether the court had decided on the commanding officer’s request without notifying the suspects.
At this, Justice Mandokhail pointed out that Section 94 applies only to those under the Army Act, and after the ATC’s decision, the suspects fell under the said law. He remarked that the ATCs also had the authority to reject the commanding officer’s request.
Siddiqi argued that the decision to conduct a court-martial was supposed to be made before the suspects’ custody, questioning how a handover could occur without a prior court-martial decision.
Here, Justice Naqvi asked whether the request for custody by the commanding officer provided any reasons. At this, Siddiqi apprised the bench that no reason had been mentioned in the commanding officer’s request.
However, Justice Afghan intervened, saying that the reasons had been stated in the request, specifically citing offences under the Official Secrets Act.
Justice Mandokhail noted that the procedure for registering a complaint under the Official Secrets Act is clearly outlined in the Code of Criminal Procedure, which requires a magistrate to record a statement and decide whether an investigation is necessary.
Siddiqi maintained that the complaint could be in a case’s form and that only the federal government can lodge a complaint under the Official Secrets Act. Any private individual has no authority to file such a request, he added.
This was the stage when Justice Mazhar raised the key question: “If cases are transferred from military courts to ATCs, from what point would the trial begin? Will it start afresh, or will it be based on the evidence recorded during the military trial?
Justice Amin then asked whether invoking the past and closed transaction doctrine would validate the military trial. Siddiqi responded that the military trial was challenged under Article 245 of the Constitution.
At this, the judge pointed out that Article 245 was not in effect on may 9 but had been implemented when the petitions were filed.
Following these discussions, the constitutional bench adjourned the hearing on intra-court appeals against military trials of civilians until tomorrow.
