While hearing intra court appeals of Center Wednesday top court Justice Muhammad Ali Mazhar observed saying the retrial of those already tried in the military courts was not possible.
A seven-member Constitutional Bench of the Supreme Court – led by Justice Amin-ud-Din Khan was hearing the pleas seeking revisit of the court verdict declaring the trial of civilians in military courts as unconstitutional. The other members of the bench included Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.
Justice Muhammad Ali Mazhar remarked that it was not possible that a military court award a sentence under the Official Secrets Act and then refer the case to a special anti-terrorism court. Faisal Siddiqui Advocate told the bench that a five-member bench of the Supreme Court had given three judgments against the military courts adding that Justice Ayesha A Malik, Justice Munib Akhtar and Justice Yahya Afridi had given their respective concurrences. He submitted that all the judges had concurred on the ruling adding that when the decisions of judges were similar but the reasons were different, then the reasons were considered part of the judgment.
Justice Jamal Khan Mandokhail observed that all the five judges of the five-member bench were unanimous that the civilians could not be tried in military courts. Justice Mazhar, however, observed that the judges had not merely added their supplementary notes but delivered distinct verdicts. Siddiqui submitted that he did not agree with the arguments of Uzair Bhandari, counsel for PTI founder, who had totally relied on Justice Syed Mansoor Ali Shah’s remarks in the case pertaining to Supreme Court (Practice and Procedure) Act, 2023.
“Justice Mansoor Ali Shah had upheld the matter regarding retrospective appeal rights; however, I had opposed this view,” Justice Muhammad Ali Mazhar remarked. He further said if the right to appeal was granted retrospectively, then the appeals would also start arriving from 1973.
Siddiqui contended that if the scope of appeal was limited, then few of the appeals will also be dismissed. Justice Muhammad Ali Mazhar observed that after lodging the FIR, the accused was considered as an accused seeking bail.
The counsel submitted that the nature of an offence of the accused was determined only after the indictment process as to whether the offence related to Official Secrets Act or not. Siddiqui submitted that the Constitutional Bench in Dewan Motor’s case had settled a principle that if the foundation was wrong, then the structure could not survive.
Justice Naeem Akhtar Afghan, while diverting the attention of the counsel towards his argument that the trial of civilians could be set aside without setting aside the law, observed that the Official Secrets Act was not included in the schedule of anti-terrorism law.
Siddiqui submitted that for custody of any accused, the magistrate after examining the case, referred it to the anti-terrorism court. At this, Justice Amin observed that if the application came directly, then the judge of anti-terrorism court should give the reasons for it in his judgment.
Siddiqui submitted that at the time of custody of the accused, the court must satisfy itself as to whether the offence was related to a military court or not. “Nobody could be court-martialed merely on lodging of an FIR,” Siddiqui contended. Justice Mandokhail observed that the magistrate could hand the custody of accused over to investigation officer and asked the counsel whether the investigation officer could hand the custody of accused over to somebody. Siddiqui replied in the negative but added that after the accused was indicted by the magistrate and if an application came from the military, then the custody to military could not be refused.
Later, hearing of the matter was adjourned for Thursday.
