Justice Jamal Mandokhail on Friday questioned whether army officers have sufficient experience and expertise to award death sentences to an accused.
His remarks came during the hearing of an intra-court appeal against civilian trials in military courts, conducted by a seven-member Supreme Court constitutional bench under the supervision of Justice Amin-Ud-Din Khan.
The top court, in its unanimous verdict by a five-member bench, on October 23 last year, declared civilians’ trials in military courts null and void and ordered that 103 suspects be tried in civilian courts.
However, on December 13, 2023, a six-member bench of the apex court – with Justice Musarrat Hilali differing with the majority – suspended its October 23 order on petitions challenging the earlier verdict, which was then challenged.
But after a hiatus, the constitutional bench in December last year had conditionally allowed military courts to pronounce reserved verdicts of 85 civilians who were still in custody for their alleged involvement in the May 9, 2023, riots. The May 9 riots refer to the violent protests triggered by the arrest of the PTI founder in a corruption case, during which state installations, including the General Headquarters, were also attacked.
As a result, the military court handed down punishments to all 85 accused in the same month, but a few days earlier, 19 convicts were pardoned after they appealed for mercy. During the hearing, Justice Mandokhail remarked that the Army Act was applicable to the military only and the court must ensure that fundamental rights and justice are upheld for all.
Justice Musarrat Hilali sought clarification on who drafts judgments in military courts, noting that, as per her understanding, cases are heard by one person, while decisions on punishments are made by commanding officers who did not hear the case.
Khawaja Haris, the counsel for the Ministry of Defence, explained that the Judge Advocate General (JAG) Branch assists in drafting judgments.
Justice Hilali probed about the judicial structure of military trials in other countries, to which Justice Muhammad Ali Mazhar responded that globally, court-martial panels typically consist of military officers. Haris claimed that these officers were experienced in conducting trials.
Justice Hilali highlighted an incident where an army chief’s plane was forced to leave the country by turning off airport lights, endangering all passengers on board. She pointed out that, despite the significance of the event that led to a martial law in the country, the case was not tried in a military court.
Haris responded that hijacking was not a crime listed under the Army Act, so there was no military court trial.
Justice Mandokhail said that despite his 34 years of experience, he does not consider himself an expert in his field, and asked whether army officers possess necessary knowledge and expertise to award death sentences to an accused. Haris assured SC that he would elaborate on military trial procedures in the next phase of his arguments.
Additional Attorney General Aamir Rehman informed the top court that around 5,000 individuals were implicated in the events of May 9, with evidence placing 105 of them at the scene of the incidents referred to military courts.
The SC constitutional bench later adjourned the hearing of the intra-court appeal against civilian trials in military courts till Monday.
