No trial under Army Act unless charges framed: Justice Mandokhail

ISLAMABAD: Justice Jamal Khan Mandokhail said a person could not be tried under the Army Act until the charges against him are framed.

A seven-member Constitutional Bench of Supreme Court headed by Justice Aminuddin Khan, on Tuesday, heard intra-court appeals (ICAs) against the apex court’s decision on the trial of civilians by military courts.

During the hearing, Khawaja Haris, the lawyer representing the Defence Ministry, outlined the procedure for trials and investigations in military courts.

He informed the court that in military trials, an investigation is conducted after charges are framed against the accused. Witnesses are presented before the accused, who is also given the opportunity to cross-examine them. Haris asserted, “The kind of transparent investigation conducted in the army cannot be seen anywhere else.”

Khawaja Haris defended the military court procedures, stating that court martial decisions are made by majority and that at the beginning of a court martial, the accused is asked whether he has any objection to a judge.

Justice Mussarat Hilali questioned whether a military officer in uniform could serve as an impartial judge, stating; “Nowadays, questions are being raised about the judges too. How can a military officer in uniform be impartial as a judge?”

In response, Khawaja Haris remarked; “Even judges are wearing uniforms”.

Justice Mandokhail asked him; “You mean to say that there is no difference between black and khaki uniforms? No matter how good the procedure is, wouldn’t it be better to have an independent body for implementation?” He further noted that the accused are often dissatisfied with trials conducted by their accusers.

Defence Ministry’s lawyer informed the court about the charge-frame procedure in the Army Act and the FIA of the police. He explained that after a charge is framed, the commanding officer conducts an inquiry, and the investigation is based on the charge. Justice Mandokhail questioned whether the charge frame is also made during the trial, to which, Haris clarified that the charge frame is separate and is made during the trial.

Justice Mussarat Hilali raised concerns about the application of military law to civilians, asking; “No matter how strict this law is, will it apply to civilians?” Justice Mandokhail added; “Unless there is an allegation, one cannot be considered violating the Army Act; a charge has to be framed.” He stated; “No matter how good the procedure is, wouldn’t it be better to have an independent body for implementation?”

The case was adjourned until today (Wednesday).

Copyright Business Recorder, 2025