Islamabad:
During the hearing of the intra-court appeal against the decision to try civilians in military courts in the Supreme Court, Justice Aminuddin Khan, head of the constitutional bench, said that apart from Indian spy Kulbhushan, details of all civilians who have been tried in military courts so far should also be submitted, while Justice Hassan Rizvi remarked that the court wants to see how the decision was made on the evidence in the trial.
A 7-member constitutional bench headed by Justice Aminuddin Khan heard the case. Defense Ministry lawyer Khawaja Haris said in his arguments that the entire procedure is followed in military trials. Justice Hassan Rizvi said that the court asked you for the records of military trial cases, and the court wants to see how the evidence was decided in the trial. Khawaja Haris said that the court will show the record of a case for review. Justice Muhammad Ali Mazhar remarked that the court has to see the procedure and whether the requirements of a transparent trial were met in the military court.
Khawaja Haris said that the High Courts or the Supreme Court cannot review the merits. Justice Hassan Rizvi said that the court does not want to discuss the evidence presented in the trial, it only wants to review the evidence. Under natural justice, no one can be punished without being heard.
Khawaja Haris said that the court cannot review the sentence on the basis of fundamental rights. The five-member bench did not properly review the point of admissibility, the court cannot review the record on its merits, the right to life and fair trial are from the beginning.
Justice Muhammad Ali Mazhar remarked that even if Article 10A of Fair Trial does not exist, the procedure must be followed. Justice Jamal Mandokhel asked whether fundamental rights have been withdrawn in Article 8(3).
The defense ministry's lawyer said that this article has been included in the constitution since 1973, when Article 8, subsection 3, was implemented, and fundamental rights were abolished. Justice Jamal Mandokhel asked whether the law on military trials of civilians could be amended. Justice Muhammad Ali Mazhar remarked that the article on fair trial came in 2010, the Criminal Code is from 1898, and the entire procedure for trial has been given in the Criminal Code.
Justice Jamal Mandokhel raised the question of what is the purpose of enacting the Army Act, to establish discipline in the armed forces or to check criminal activities? Khawaja Haris said that the purpose of the Army Act is to ensure that there is no hindrance in the activities of the armed forces. Justice Jamal Mandokhel asked whether these problems would not have arisen if separate legislation had been made for criminal activities. Khawaja Haris replied that the process of improving the law is ongoing.
Justice Naeem Afghan remarked that the Army Act deals with officers and soldiers of the Armed Forces. Section 2 of the Act was amended in 1967 and added. With this amendment, the words “any person” were added to the law. With the inclusion of these words in the law, retired officers also came under the purview of military trial. If this 2 of the Act remains null and void, then no military trial of any retired officer will be possible and if it is happening, it will also end. It seems that the words “any person” included in the law have not been correctly defined. Perhaps this flaw has remained in the law.
Khawaja Haris said that the constitutional amendment was made for some other reason. Justice Aminuddin Khan said that apart from Kulbhushan, how many civilians have been tried so far, please answer with data. Justice Jamal Mandokhel said that try to complete the arguments today, Khawaja Haris said that I will try my best. The hearing was adjourned till today.
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