A constitutional bench (CB) of the apex court has hinted at concluding a case with regard to trial of a group of May 9 rioters in military courts in the next two hearings.
A seven-member CB led by Justice Aminuddin Khan on Tuesday resumed hearing the intra-court appeals filed against the SC’s October 2023 order, annulling trials of May 9 accused by military courts.
Khawaja Haris, the counsel for the Ministry of Defense, continued his arguments in support of military courts and contended that the crimes committed on May 9, 2023 after the arrest of former prime minister Imran Khan were against the interests of the state.
Justice Jamal Khan Mandokhail remarked that any violation of the law is against the interests of the state, as all crimes go against the state’s interest.
Referring to last month’s hijacking of Jaffar Express in Balochistan, he asked if the train incident was not against the interest of the state. He added that the primary role of the armed forces is the defense of Pakistan, apparently implying that it was not its job to conduct trials.
Khawaja Haris responded by asking how the armed forces could defend the country “when their legs are being pulled from behind”. Justice Mandokhail stated that this was not a matter for emotional responses.
“It is about national security. If a police officer is stationed outside the court to ensure that no armed person enters, and he steps away for five minutes, that would be a breach of discipline. Isn’t that also a matter of state security?” he asked.
Justice Mussarat Hilali, while noting that she feared the media might distort her comments, asked if it was possible to deprive a citizen of his fundamental rights through simple legislation.
“Shouldn’t civilians be tried in military courts through a constitutional amendment?” she questioned, adding that in India, an independent forum is available to file appeals against orders of military courts.
Justice Muhammad Ali Mazhar asked if the definition of civil offenses is included within the Pakistan Army Act, 1952. He noted that the SC on October 23, 2023 also nullified Article 59(4) of the act.
“Does this mean that civilians are now outside the scope of the Pakistan Army Act? Does the Supreme Court’s decision of October 23 mean that no civilian can now be tried under the act?” he asked.
Haris replied in the affirmative. “I believe that is the effect of the Supreme Court’s decision,” he said.
Justice Mandokhail said it is clear that if a technician is working for the army and commits an offense during that time, then he will face a military trial. However, if that technician works elsewhere a year later, the civil law would apply.
The judge noted that Haris had not yet answered his question as to under which article of the Constitution do military courts operate as military courts are not covered under Article 175.” The hearing will resume today at 11:30 AM.
