ISLAMABAD: The federal government submitted that the violence against the military and vandalism of army installations was a direct attack on the national security of Pakistan, and was therefore, prejudicial to the security, interests, and defence of Pakistan.
Attorney General for Pakistan Mansoor Usman Awan, on Monday, filed a reply on behalf of the federal government on the petitions against the trials of civilians by the military courts and prayed that the petitions be dismissed.
A six-member bench, headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Ayesha A Malik will resume the hearing of the petitions today (Tuesday).
The reply stated that as a consequence of the events of 09-05-2023, several FIRs were registered against the perpetrators. Some of the FIRs do not explicitly mention the provisions of the Army Act. It submitted that this Court (SC), in the case of FIA vs Hamid Ali Shah held that it is the contents of an FIR and not the mentioning of a particular statutory provision which determines the nature of the offences made out.
“Thus, the mere fact that the offences under the provisions of the Official Secrets Act, 1923 triable under the Pakistan Army Act, 1952 have not been mentioned in some of the FIRs registered regarding the events of 09-05-2023 does not imply that offences under the Army Act cannot be made out from the contents of the said FIRs,” it added.
It stated that the challenges raised in the petitions can adequately be adjudicated by the High Courts under Article 199 of the Constitution which, inter alia, empowers the High Courts to “make an order […] as may be appropriate for the enforcement of any of the fundamental nights”.
It highlighted that both the Army Act and the Official Secrets Act, 1923, not only predate the Constitution, but were never, till date, challenged. As such, all actions taken or being taken under the Army Act and the Official Secrets Act are under fair exercise of power, in accordance with law.
The apex court exercising original jurisdiction over the petitions would be judicially inappropriate. It would deprive those tried under the provisions of the Army Act or the Federation from invoking this Court’s appellate, jurisdiction, should they wish to avail the remedy under Article 185 of the Constitution.
The reply added that in case the petitions are dismissed, any finding of the Court (SC) will invariably impact any petitions filed by such persons (who, barring one, are not parties to these petitions) before the High Courts under Article 199 concerning the trial of such persons under the Army Act. This position is supported by the opinion authored by Justice Yahya Afridi dated 23-02-2023 in suo moto case No. 01 of 2023.
The Federation again requested that the petitions ought to be heard by the Full Court, adding that one of the members of the bench (Justice Yahya) has also urged that the chief justice may consider reconstitution of the present bench, and refer these petitions to the Full Court.
It stated that there are numerous civil, as well as, criminal offences (along with the penal provisions thereof), under the Official Secrets Act, which can be tried by court martial, in respect of persons who are otherwise not subject to the Army Act.
Copyright Business Recorder, 2023