Judge Jamal Khan Commandkhail said Wednesday that the five judges of the Supreme Court were unanimous in their decision that civilians cannot be tried in military courts.
He made these comments during the hearing of an Intra-Canch appeal that defies the trial of civilians in the military courts. Judge Commandkhail is part of a constitutional bank of seven members that supervises the appeal, which also includes the Judges Amin-Din Khan, Muhammad Ali Mazhar, Hassan Azhar Rizvi, Musarath Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
During the process, the lawyer Faisal Siddiqui argued that there had been three decisions separated by a bank of five members with respect to the military courts.
He pointed out that Judges Ayesha Malik, Muneeb Akhtar and Yahya Afridi had written individual decisions, but all the judges agreed to the central observations. Siddiqui emphasized that when the decisions of the judges align but their reasoning differs, all reasons are considered part of the general decision.
However, he argued that all judges agreed on the key issue that civilians should not be tried under military jurisdiction.
Siddiqui explained that when different judges write separate opinions in the same case, their reasoning is collectively part of the final verdict. He dismissed arguments that suggested that the decisions were divided.
Judge Muhammad Ali Mazhar said the judges had written detailed decisions instead of complementary notes.
Judge Commandkhail reinforced the argument by stating that the five judges were in consensus against military trials for civilians.
A key dispute point in the case is whether the anti -terrorist courts (ATC) had formally authorized the transfer of civil suspects to military custody.
Judge Naeem Afghan questioned if there was an official court order that allowed such transfers.
Siddiqui replied that, although there were some transfer orders, they did not include a clear justification.
In addition, he argued that a suspect could only be delivered to the military authorities after formal charges had been framed against them.
The lawyer emphasized that transferring civilians to military custody based solely on a police report or an initial complaint was legally questionable.
Siddiqui said the Supreme Court could declare unconstitutional civil military trials without necessarily hitting sections of the Army Law.
He said that the court had previously ruled in similar cases that a law could remain in place, while certain requests were considered illegal.
Judge Muhammad Ali Mazhar also commented on the limitations of the appeals in cases of the Military Court, noting that those who have already been judged under military jurisdiction could not rehearse their cases in the civil courts.
He stressed that the military courts could not sentence people under the law of official secrets and then send the case to the anti -terrorist courts.
Judge Commandkhail commented that the Army Law did not have a formal provision to register the first information reports (FIR) against civilians.
Siddiqui agreed and argued that before any civilian could be put into military custody, a magistrate must review the case and decide whether to proceed under military or anti -terrorist law.
The Bank of the Supreme Court continued its deliberations on the case, with Judge Aminuddin Khan stating that the courts must determine their own jurisdiction before continuing with any case.
Siddiqui warned that if the right to appeal was limited in these cases, it could establish a dangerous legal precedent.
He also dismissed the argument that because there were no initially objection, the court could ignore the jurisdictional concerns.
The Court postponed the hearing, with more expected arguments in the next session.
During yesterday’s hearing, the Pakistan Supreme Court referred to the former army chief (retd.) Qamar Javed the extension of Bajwa’s service while listening to a case on military judgments for civilians, reviving the debate on the past legal precedents.
