Justice Jamal Khan Mandokhail has said that the Army Act lists several offences, but they all apply exclusively to military officers.
He made these remarks during the Supreme Court hearing on intrajudicial appeals challenging the trial of civilians in military courts.
A seven-member constitutional bench, headed by Justice Aminuddin Khan, heard the case on Monday, Express News reported.
The session began with Khawaja Haris, representing the Ministry of Defence, presenting his arguments.
Justice Aminuddin urged Khawaja Haris to conclude his arguments by Tuesday, asking for a concise explanation of which cases were transferred to military courts and why.
He added that any questions from the court on the matter would be addressed later.
Khawaja Haris argued that the Supreme Court had previously invalidated section 59(4) of the Army Act.
Justice Mandokhail noted that Section 31D, used for civilian trials, relates to incitement to obstruct military duties.
Justice Musarrat Hilali noted that the Constitution recognizes several courts, highlighting the need to examine the jurisdiction, location and procedure for trying cases.
“The issue here is procedural: who will conduct the trial,” he said.
Judge Mandokhail questioned whether trials of civilians in military courts could be classified as courts-martial.
Khawaja Haris confirmed that they could.
Justice Hilali raised the absence of any specific punishment in the Army Act for suspending the Constitution and asked: “What punishment does the Act prescribe for an army officer who suspends the Constitution?”
Khawaja Haris responded by stating that Article 6 of the Constitution prescribes punishment for such acts and takes precedence over all laws. He also mentioned that the Army Law includes sanctions for breach of oath.
Justice Mandokhail highlighted that the judiciary had previously legitimized martial law and questioned whether judges involved in unconstitutional actions are also covered by Article 6.
Justice Muhammad Ali Mazhar added that the judges were initially involved in the treason trial of former military ruler Pervez Musharraf, but were later excluded from the case.
