From where trial would begin if cases transferred from military court to ATC, asks SC judge

ISLAMABAD: Justice Muhammad Ali Mazhar inquired about the stage from where the trials of civilians would resume if the cases are transferred from a military court to an anti-terrorism court (ATC).

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

Faisal Siddiqui, representing the members of civil society, pleaded that he was not demanding to strike down any provision of the Army Act, but stressing upon via media solution. “If my arguments are accepted then the trial before the military court be considered struck down and past and closed transaction.”

Justice Mandokhail inquired from the counsel that by asking for via media solution you are accepting the jurisdiction of the military court. Justice Mazhar asked do you want de novo trial of 103 persons before the ATCs. “If cases are transferred from military courts to ATCs, from what point would the trial begin? Will it start afresh, or will it be based on the evidence recorded during the military trial,” he asked.

Faisal replied he wanted limited de novo trial. He then referred a judgment of the Supreme Court, wherein, the conviction and sentence were awarded, but the sentence was not executed. He said the court protects citizen, but also safeguards the executive.

Faisal contended that the core issue was not how 105 suspects had been selected for military trial but whether the law allowed their transfer without determination of the charge. Justice Amin noted that the transfer of suspects was a matter of record and asked whether any lawyer had challenged Section 94 of the Army Act?

Faisal argued that according to the law civil cases against the army officer can go to the civil courts.

He said under Section 94 of the Army Act if the military authority approaches the magistrate to hand over the custody of a civilian, who becomes subject to this Act by reason of his being accused of an offence mentioned in clause (d) of sub-section (1) of Section 2 shall be liable to be tried under this Act.

Justice Jamal Khan Mandokhail said that before seeking custody of such person the magistrate first has decide or order that the person is liable to be tried before the military court.

However, Justice Naeem Akhtar Afghan said that the application before the magistrate is filed under Section 94 of the Act, and before that army charge the persons whose is required, adding in the Act the word charged is different as used in ordinary court. He noted the power under Section 94 is discretionary.

Faisal contended that the discretion is discriminatory, and recommended that Section 94 also needed structuring.

Justice Mussarat Hilali said if no objection is raised at the relevant time then can that be raised at the later staged. She said no one had challenged his transfer before this court or the High Court. Justice Amin noted that no one on behalf of the accused has come before the court objecting his transfer to the military court.

The civil societies’ counsel said that he had raised this issue, adding it is not necessary that the accused person appear before the court and raise the objection. He said anybody in the interest of justice can raise this issue.

Faisal said the reason for not approaching the High Court was that Article 245 of the Constitution was invoked by the government. He said when armed forces are called in aid of civil power then the High Court under this Article cannot exercise its jurisdiction in areas in which the armed forces are acting in aid of civil power.

The case is adjourned until today (Tuesday).

Copyright Business Recorder, 2025