April 10, 2025
By Rana Malhi
ISLAMABAD
The seven-member constitutional bench of the Supreme Court, on Thursday, continued hearing the intra-court appeal against the trial of civilians in military courts. The bench is headed by Justice Aminuddin Khan and includes other judges such as Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Naeem Akhtar Afghan, Justice Hasan Azhar Rizvi, among others.
The Ministry of Defence has been represented by senior lawyer Khawaja Haris, who continued his rebuttal arguments.
Justice Muhammad Ali Mazhar said that the previous day the court had also asked the Attorney General about the appeal, while Justice Aminuddin Khan pointed out that no one had challenged the relevant parts of Article 175. In response, Khawaja Haris said, “Salman Akram Raja based all his arguments on Article 175.”
Justice Mandokhail raised a significant question: “Is there any allowance for civilian trials in military courts beyond Article 175?” Khawaja Haris, citing previous court decisions, responded that all these issues are covered in the Muharram Ali and Liaquat Hussain cases. The point related to armed forces members comes from the FB Ali case.
Justice Mandokhail remarked, “We’ve been saying since day one that the gap in FB Ali still exists today.” Khawaja Haris argued, “What you are saying reflects the opinion of a nine-member bench.” Justice Aminuddin Khan responded, “If you’re talking about connection, then that too is not an observation.”
Justice Muhammad Ali Mazhar clarified, “Defense of Pakistan and Defense Services of Pakistan are two separate things. Civil defense has no relation to the country’s defense.” Khawaja Haris argued that the crime in question should be of a nature that affects the armed forces. “In the services, all members of the armed forces are included.”
Khawaja Haris further stated that Section 8(3)(a) of the Army Act pertains to discipline. At this, Justice Naeem Akhtar Afghan remarked, “Entering a restricted area also falls under violation.” He also made an interesting observation, “Shopping malls have been built inside cantonments now—if someday I’m not allowed to enter? If I don’t have a pass and force my way in, will I also face a military trial?”
“Since the 1967 amendment, no case under 2(D)(2) has come forward; this is the first case we are hearing.” he said.
Justice Muhammad Ali Mazhar said, “Please read the definition of restricted areas so we can know which places are included.”
Justice Mandokhail noted, “If military trials start over entry into restricted areas, then it will become very easy to try anyone in a military court. In Quetta Cantonment, such altercations are seen almost every other day.”
Justice Muhammad Ali Mazhar pointed out, “There are six to seven cantonment areas in Karachi—surely they haven’t declared central roads as restricted areas?”
Justice Hasan Azhar Rizvi revealed, “Five to six Supreme Court judges live in Clifton Cantonment, and that area is not notified as restricted.”
Justice Mandokhail shared a personal experience, “Once, even though I had a permit, I was not allowed entry into the cantonment area.” He said, “If we go by the definition of Defense of Pakistan, then even the Supreme Court, Parliament, and railway stations fall under it. The Official Secrets Act has existed in Pakistan from the beginning.”
He raised a critical question: “Are cases sent to military courts because they hand down more punishments? Why don’t trials proceed in regular courts?”
In response, Khawaja Haris argued, “Even before the NAB law, there were laws to prevent corruption. NAB law says the accused has to prove their innocence.”
Justice Mandokhail said, “The Army Act is indeed a valid law, but since the inclusion of Article 10-A in the Constitution, previous provisions no longer hold. Why is there no independent forum for military trials? We are bound by the Constitution.”
Khawaja Haris maintained that the Constitution states military trials cannot be examined in the context of fundamental rights.
At the end of the hearing, the court adjourned further proceedings until Tuesday, while Khawaja Haris will continue his rebuttal arguments.