April 8, 2025
By Rana Malhi
ISLAMABAD
On Tuesday, the seven-member constitutional bench of the Supreme Court once again heard intra-court appeals against the trial of civilians in military courts. The case was heard by a constitutional bench headed by Justice Amin-ud-Din Khan, during which the Ministry of Defence’s counsel, Khawaja Haris, continued his rebuttal arguments.
Khawaja Haris began by stating that he was discussing “Volume Six” and would resume his arguments from where he had left off. He added that he would also inform the court about the historical context of Article 203. Haris clarified that, according to the Constitution, court-martial courts do not fall under the jurisdiction of the High Courts, and that the Constitution contains a provision supporting court-martials.
Justice Muhammad Ali Mazhar noted that Salman Akram Raja had also cited a judgment that aligned with his interpretation.
Justice Jamal Khan Mandokhail said that the FB Ali case spoke about compliance with legislation. Justice Muhammad Ali stated that the existence of collusion in the FB Ali case would be determined based on the nature of the allegations, while Justice Mandokhail noted that the basis for collusion in that case was linked to the defense of Pakistan.
Justice Mandokhail questioned if this would only apply to members of the armed forces?
He further said that the judgment in the FB Ali case stated that those subject to Section D of the Army Act would not be subject to the rest of the Act.
He raised another point.
“How can the law be applied to a conspiracy that hasn’t even taken place yet?” To this, Khawaja Haris replied that the Army Act applies to those involved in conspiracy. Justice Muhammad Ali Mazhar commented that in the criminal procedure code, separate sections exist for murder and attempted murder.
Justice Jamal Khan Mandokhail remarked that the criminal justice system is protected under Article 175(3) of the Constitution.
Justice Musarrat Hilali said, “There is a confusion, and I want to ask a question—but since the press is present, who knows how my observation might be twisted.”
She further questioned, “Is there no right to appeal? Can fundamental rights be taken away from citizens through ordinary legislation? Shouldn’t a constitutional amendment be required for military trials of civilians?” In this context, Justice Musarrat Hilali referred to India, stating that there are independent forums available there to challenge military trials.
Justice Muhammad Ali Mazhar said, “As far as the right to appeal is concerned, the Attorney General had submitted proposals before the court, and those proposals are part of the judicial proceedings and orders.” Justice Amin-ud-Din Khan said that the Attorney General himself would appear after the defense counsel’s arguments are concluded.
Justice Muhammad Ali Mazhar added, “The issue of granting or denying fundamental rights or appeals isn’t directly before us.” Justice Mandokhail said, “When a matter can’t even reach the court under Article 8(3)(A), then it’s over—how can there be an appeal?”
Justice Mazhar clarified, “I’m not granting the right to appeal to anyone—an argument was made referencing international standards regarding the right to appeal.”
Haris stated that there had already been an extensive debate on Article 245, which wasn’t directly relevant to this case. He said he would submit written arguments on Article 245. He also mentioned that an American judgment had been cited, which was based on consultation.
Justice Hasan Azhar Rizvi said that a Ugandan judgment had been cited, to which Justice Musarrat Hilali remarked, “They could’ve cited a judgment from a better country instead of Uganda.”
Jaffer Express incident
During the hearing, the Jaffar Express tragedy was also discussed. The Ministry of Defence’s counsel, Khawaja Haris, said that the crimes of May 9 were against the interest of the state. To this, Justice Jamal Mandokhail remarked that any violation of the law is against the interest of the state — all crimes are against the state’s interest.
Justice Jamal Mandokhail questioned whether the train incident in Bolan was not against the interest of the state. He said the primary duty of the armed forces is the defence of Pakistan. In response, the Ministry of Defence’s counsel said, “Then how will we defend the country if our legs are being pulled from behind?”
Justice Mandokhail said, “This is not a matter to be emotional about; it concerns national security. For instance, a policeman is stationed at the gate of our court, and it is his duty to ensure that no armed person enters the court. But if that policeman steps away for five minutes, it would be a violation of discipline. Is that not a matter of state security?”
Justice Muhammad Ali Mazhar asked, “Does the Army Act contain a definition of civil offences? If clause 59(4) of the Army Act is struck down, are civilians then excluded from the scope of the Army Act? Will the effect of the Supreme Court’s October 23 ruling be that no civilian will now be tried under the Army Act?” To this, Khawaja Haris responded, “In my view, that will indeed be the effect of the Supreme Court’s decision.”
The court adjourned the hearing until tomorrow, and Khawaja Haris will continue his rebuttal arguments.