Under Justice Aminuddin’s leadership, the Supreme Court’s constitutional bench continued to consider intra-court arguments contesting the invalidation of civilian trials in military tribunals. Khawaja Haris, a lawyer for the Defense Ministry, was unable to finish his arguments; thus, the hearing was postponed till Monday.

Justice Musarat Hilali pointed out that although the trial was not conducted in a military court, the October 12, 1999, plane conspiracy case involving former President Gen. Pervez Musharraf was rehashed during the proceedings. The incident resulted in the implementation of martial law. Khawaja Haris explained that such a trial is not conceivable because hijacking is not covered by the Army Act.

She claimed that by turning off the airport lights, an army chief’s plane was instructed to depart the nation. She stated that it endangered the lives of every individual on board.

“How is it possible for someone who wasn’t on the plane to hijack it?” Inquired Khawaja Haris. Justice Hilali questioned where a trial would take place in the event that a fighter or military aircraft was taken over.

The Army Act is a unique law, according to Khawaja Haris, and special laws have particular rules regarding evidence and trial procedures.

With a parliamentary majority, crimes like murder or hijacking (Section 302) might be added to the Army Act, said Justice Jamal Mandokhel. He underlined the need for supervision of the military court trial process, raising concerns about whether army officials presiding over the trials had the experience to render decisions, particularly those involving death penalties.

The officer who conducts a trial does not declare the verdict himself; thus, Justice Hilali questioned how an officer who had not conducted the trial could decide on sentencing. “The officer conducting the trial sends the case to another senior officer who delivers the verdict,” she said. She pointed out differences in the way rulings are worded and requested further information regarding the military court procedure.

Haris remarked that the military’s judge advocate general branch assisted in writing the verdict.

Justice Naeem Akhtar Afghan remarked that there is a general impression that the trial in a military court is only to the extent of punishment. He added that the suspects receive the facility to hire a lawyer of their choice in a court martial.

“A lawyer is also appointed for the suspects along with an officer as a friend,” said Justice Hassan Azhar Rizvi, adding that the only difference is that the judges in military courts are officers.

Justice Mandokhel remarked that the Army Act is applicable only to the army and said it would be seen if military officers get fundamental rights and justice or not.

Justice Afghan remarked that everyone understood military courts did not conduct trials like civilian courts. Justice Mandokhel said, as per the Constitution, these courts provided protection to all fundamental rights.

Justice Hilali asked who the judge is if such a trial takes place in any other country. Justice Muhammad Ali Mazhar remarked that all over the world, only officers sit in courts martial. Khawaja Haris told the court that officers sitting in courts martial possessed experience of such trials.

Justice Mandokhel further said that appeals against the decision of military courts could only determine malice and jurisdiction, while merits could not be discussed in an appeal.

Also Read: Supreme Court Cancels Hearings on Civilian Trials in Military Courts

“Decisions of military courts cannot be challenged even on the basis of fundamental rights,” Khawaja Haris told the court.

Justice Mandokhel remarked that, keeping this in mind, the scope of the Army Act should be limited instead of expanding its application. Those against whom a decision is pronounced in the army should also have the right to appeal in civilian courts, he added.

Justice Hilali commented that in all the FIRs in the May 9 cases, all the provisions of the Anti-Terrorism Act were included, asking how a military trial was conducted on these provisions. “How can a military court handle cases registered under the Pakistan Penal Code and ATA?” she asked.

“The Army Act applies only to those who have violated the Official Secrets Act and does not apply to every terrorist,” Khawaja Haris argued, adding that when a suspect is handed over into military custody, it has its own system of investigation.

Additional Attorney General Aamir Rehman told the court that there are 35 FIRs and 5,000 suspects in the May 9, 2023 cases, adding that only 105 of them, whose presence was proven, were tried in military courts.

Khawaja Haris remarked that past cases like Kulbhushan Jadhav’s were also tried in a military court, while the trial was also recognised by the International Court of Justice. The lawyer also mentioned that appeals against military court sentences have been entertained by high courts in terrorist cases.