The Supreme Court of Pakistan, during a hearing on intra-court appeals against the trial of civilians in military courts, raised critical questions about the distinction between individuals involved in the May 9 and December 16 incidents. A seven-member constitutional bench, headed by Justice Aminuddin Khan, heard the appeals challenging the trial of civilians in military courts.
Justice Musarrat Hilali questioned the difference between civilians implicated in the May 9 attacks on military installations and those involved in the December 16, 2014, terrorist attack on the Army Public School in Peshawar. She noted that while the December 16 incident involved terrorism charges, the May 9 incident pertained to attacks on military establishments.
During the proceedings, Khawaja Ahmad, the counsel for retired Justice Jawad S. Khawaja, argued that civilians should not be tried in military courts. He clarified that while he was not challenging the entire Army Act, its application to civilians should be reconsidered. Justice Mansoor Ali Shah also referenced this argument in his earlier decision.
Justice Jamal Khan Mandokhail drew parallels to the F.B. Ali case, which involved similar legal disputes. He questioned how political parties should be held accountable in such situations and raised concerns about why the May 9 incident was being treated as more severe than acts of terrorism. He also referenced the Mehran Base attack and other incidents to highlight the gravity of the issue.
The defense ministry’s counsel defended the military courts, stating that they operate under a separate legal framework that is internationally recognized. He argued that the Army Act applies to civilian employees of the armed forces. However, Justice Hasan Azhar questioned whether the Army Act would apply in cases of attacks on airbases.
Khawaja Ahmad, citing an ISPR statement, pointed out that the military had declared the evidence from the May 9 incidents as irrefutable. He questioned how a fair trial in military courts could be ensured under such circumstances.
Justice Muhammad Ali Mazhar raised concerns about the implications of nullifying Section 2(1)(d) of the Army Act, noting that it could affect high-profile cases like that of Kulbhushan Jadhav. Justice Hasan further inquired about the trial process for enemy spies, to which the counsel responded that such cases should be handled by anti-terrorism courts.
Justice Mandokhail emphasized the importance of justice, stating that it is worse to punish one innocent person than to let a hundred guilty individuals go free. He added that while the court’s role is to deliver judgments, true justice lies with God. Justice Hasan also highlighted the lack of witness protection, which often leads to delays in cases.
The court adjourned further hearings on the civilian trials in military courts until February 3, 2024.
