April 16, 2025
By Rana Malhi
ISLAMABAD
The Supreme Court on Wednesday continued hearing the intra-court appeal on civilian trials in military courts. The seven member constitutional bench hearing the case is led by Justice Amin-ud-Din Khan, with others including Justices Jamal Khan Mandokhail, Musarrat Hilali, Muhammad Ali Mazhar, Hasan Azhar Rizvi, Naeem Akhtar Afghan, and Shahid Bilal.
During the proceedings, the counsel for the Ministry of Defence, Khawaja Haris, continued his rebuttal arguments and stated that he would inform the court whether the set rules and procedures were followed during the military trials. Citing the ‘Shah Zaman case’, he noted that while grounds for trial were available, the accused was not provided access to a lawyer of their own choice.
At this point, Justice Hasan Azhar Rizvi pointed out that the Shah Zaman case had a similar situation. Khawaja Haris responded by saying that despite having grounds for trial, there was no provision for access to a legal counsel of the accused’s choice.
Referring to Article 36 of the Vienna Convention, Khawaja Haris explained that it pertains to foreign nationals and provides for consular access. He stated that when a crime is committed, the country of the accused is referred to as the “sending state.”
Justice Muhammad Ali Mazhar remarked, “So when Kulbhushan came, India would be considered the sending state?” The Additional Attorney General clarified that under the concept of the sending state, he would be regarded as a citizen of that state. Justice Mazhar further remarked, “Whether India admits it or not, we’ll say that they sent him.” He added that under the Vienna Convention, India is indeed the sending state in Kulbhushan’s case.
Khawaja Haris further argued that it was being claimed that an Indian spy was given the right to appeal, but not Pakistani citizens. However, he clarified that Kulbhushan was only granted consular access under the Vienna Convention, which is not the same as the right to appeal. Justice Mazhar agreed, saying consular access is a right afforded to citizens of every country.
Justice Hasan Azhar Rizvi asked whether, in the absence of the right to appoint a lawyer of one’s choice, the government provides one. Khawaja Haris responded affirmatively, saying that in such cases, the government appoints a public defender.
During the hearing, Justice Musarrat Hilali remarked that the Peshawar High Court had issued a verdict against the sentences by military courts, and the decision by Justice Waqar Seth was discussed internationally. She mentioned that the verdict was even referenced at the International Court of Justice, and that Justice Waqar Seth watched those proceedings live on television.
Justice Jamal Khan Mandokhail repeatedly posed the same question: “How are proceedings conducted in military courts?” In response, Khawaja Haris explained that there is a complete procedure for the court of inquiry, through which investigations proceed. He added that the Army Act does not include a clause for filing a First Information Report (FIR).
To this, Justice Mandokhail remarked in a somewhat ironic tone, “If one prays with utmost devotion but without ablution, is it accepted?” Khawaja Haris replied seriously, stating that the matter is of extraordinary importance and requires thorough research.
Justice Mandokhail said, “You have to satisfy us not only on the aspect of a fair trial but also on the legal procedures.” Justice Muhammad Ali Mazhar asked, “Where is the Attorney General? We have important questions for him.” At this, Additional Attorney General Aamir Rehman informed the bench that the Attorney General is receiving instructions and may take a day or two.
Presenting his arguments, Khawaja Haris said that in military trials, there is a complete process for framing charges, and the accused is given full opportunity for defense. They are also informed of the names of the officers who will conduct their trial and have the right to object to any of them.
Justice Hasan Azhar Rizvi questioned how civilians would know which officers to object to, unlike military personnel who are familiar with them. Khawaja Haris responded that civilians are provided assistance in this regard.
In an exchange with Justice Jamal Mandokhail, Khawaja Haris stated that the Indian judgment being referenced is irrelevant. Justice Mandokhail remarked that military court trials cannot be compared with civilian court trials.
Justice Muhammad Ali Mazhar noted that Justice Jamal is pointing out that even military officers can appeal against military court verdicts in the high court. Khawaja Haris affirmed, saying that high courts can review errors, flaws, and irregularities in military court decisions. Justice Mazhar added that if the right to appeal exists, then the high court can review the entire process.
Justice Amin-ud-Din Khan told Khawaja Haris that he could continue his arguments at 9:30 a.m. the next day. Khawaja Haris responded that he also has to appear before the Lahore High Court. Justice Hasan Azhar Rizvi suggested that he submit an application there stating his engagement at the Supreme Court. Khawaja Haris replied that the high court does not entertain such applications, but if the Supreme Court includes it in its order, that would be acceptable.
Subsequently, the court adjourned the hearing until 9:30 a.m. the next day, with Khawaja Haris scheduled to continue his rebuttal arguments, he expected to complete his arguments tomorrow.