ISLAMABAD:
The Constitutional Bench of the Supreme Court heard on Wednesday that the decision of a court to hand over civilian to the military custody for trial on the basis of first information report (FIR) alone was not correct.
Faisal Siddiqui, the lawyer for the civil society, continued his arguments before a seven-member bench, led by Justice Aminuddin Khan in the intra-court appeal over the trial of civilians in military court. In his arguments, he said that the accused could be handed over only after the indictment.
Siddiqui told the court that Uzair Bhandari, the lawyer for the Pakistan Tehreek-e-Insaf (PTI) founder, took the position that the jurisdiction of the intra-court appeal was limited. “I do not agree with Uzair Bhandari’s position,” he said.
Sitting on the bench Justice Muhammad Ali Mazhar said that Bhandari was relying on Justice Mansoor Ali Shah’s note in the Practice and Procedure case. Siddiqui said that if the scope of appeal was limited, “many of our appeals” would be dismissed.
Siddiqui argued that the constitutional bench could quash the trial of a civilian even without declaring the provisions of the Army Act null and void. He also said that the arbitrary power of the commanding officer to hand over the accused under Section 94 was not valid.
Also sitting on the bench, Justice Naeem Akhtar Afghan said that he had been asking the question from the beginning whether there was any formal order from the ATC judge for the hand over the accused. Siddiqui replied that there was an order but no reasons were given in it.
Justice Jamal Mandokhail asked whether the court itself had to decide if it had the jurisdiction to hear the case or was it mandatory for any party to object to the jurisdiction. On that Justice Aminuddin said that the court itself had to determine its jurisdiction.
Siddiqui Siddiqui said that the nature of the crime was determined only after the indictment was filed. Justice Mandokhail said that if a magistrate handed over an accused to the army, even then that accused had the right to appeal, which would ultimately reach the high court and the Supreme Court.
The hearing was adjourned until Thursday (today).
