SC asks why no accused challenged transfer of custody to military authorities

ISLAMABAD: The Supreme Court questioned why no accused had challenged the transfer of their custody to military authorities.

A seven-member SC Constitutional Bench 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.

The bench asked Salman Akram Raja, who represented father of one of the accused (Junaid Razaq), convicted by the military court, to complete his arguments today (Tuesday), but Raja replied he would do that tomorrow (Wednesday).

During the proceeding, Justice Jamal Khan Mandokhail inquired from Salman Akram Raja, why no one (accused) challenged transfer of his/ her custody to the military courts. Wasn’t this negligence on the part of the accused?

Raja said that it was not negligence. “Let me tell you the truth. The accused and their families had to go through difficult circumstances. Ten accused had appointed me as their lawyer. But, before filing petition, their families called me and forbade me to move the high court for fear of other members of their families.”

However, father of one of the accused, Junaid Razaq, refused to withdraw the petition. “I salute him. I will write a book on Junaid; it’s a hero’s story,” he added.

Earlier, Justice Hasan Azhar Rizvi remarked that arson, siege and vandalism have become order of the day. The footage of the May 9 incidents was aired by TV channels. Corps Commanders’ Houses were attacked and vandalised. The same thing happened in Bangladesh and Syria; this has become a culture, he observed.

Justice Rizvi questioned has there ever been an attack on corps commander’s houses anywhere in the world, to which, Raja said he will also give examples. Justice Mandokhail remarked that even trespassing the house of a common citizen is a crime.

Raja argued that the original decision stressed that courts cannot be established outside Clause 3 of Article 175.

Justice Naeem Akhtar Afghan asked him why they want the Supreme Court to do the work that is supposed to be done by the Parliament.

He said the country has a constitution [of 1973], and all the rules framed under the martial law were reviewed under the 18th Amendment. You gave the example of India, where the law was changed through the parliament.

Raja submitted that the clause 3 of Article 175 should also be applied to army officers.

Justice Afghan remarked that the court would examine that when any military officer was involved. He reminded the counsel that he should restrict his arguments to the (present) case.

Advocate Raja referred to the decision to declare the Law Reforms Ordinance null and void. Justice Mazhar questioned him whether legislation was done on what was pointed out in the court decisions.

Justice Mandokhail wondered what was going on in the parliament. The points you raised should have been contemplated and acted upon by the parliament. Advocate Raja replied that it was judicial authority to give punishment.

The justice observed that all the decisions you quoted were of the Balochistan High Court (BHC).

Advocate Raja submitted that he studied the history of the constitution of Pakistan. He said the BHC always gave decisions to protect ordinary citizens during the martial law. The late Justice Waqar Seth of the Peshawar High Court also gave a decision that set precedence. His decision was also referred to the International Court of Justice. His decision was suspended by the Supreme Court. The case was adjourned until today (Wednesday).

Copyright Business Recorder, 2025