Record of trial of civilians by military court presented to constitutional bench
Pakistan
Justice Mandokhail inquired on what grounds a trial by military court can be challenged
Justice Hilali read the record and asked questions
She questioned that the FIR was registered under the sections of the PPC against the accused
ISLAMABAD (Dunya News) – The Ministry of Defense on Wednesday presented the record of the trial of civilians by military court to the constitutional bench.
Advocate Khawaja Haris presented the record in seven white paper envelopes – one for every member of the bench – as directed by Justice Afghan during the hearing of intra-court appeals against the decisions of civilians’ trial in military courts.
A seven-member bench headed by Justice Amin-ud-Din Khan is hearing the appeals. The bench included justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi, Musarat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
The counsel for the ministry gave the record after a short break during the hearing.
Advocate Haris argued that the accused were asked before the start of the trial if anyone had any objection to Lieutenant Colonel Ammar Ahmed. No one objected to the officer [as a presiding officer].
Justice Mandokhail said that the record would be seen in the appeal. It is not appropriate to review the record now.
Six judges of the bench returned the record to the lawyer. Justice Mazhar returned the record after viewing it. However, Justice Hilali read the record and asked questions.
Advocate Haris referred to Article 14 and said that Justice Ayesha Malik had disagreed with one point in her judgment.
Justice Hilali questioned that the FIR was registered under the sections of the PPC (Pakistan Penal Code) against the accused. Khawaja Haris told the justice that she was studying the document in detail and asking questions.
Justice Hilali retorted that she would ask the questions that comes to her mind, whether it pleases someone or not.
EARLIER PROCEEDINGS
At the outset of the proceeding, Justice Hilali repeated the question she asked yesterday; whether investigation takes place before indictment or not?
Justice Mazhar said that investigations are done first and then the charges are framed.
Justice Afghan directed the Ministry of Defense to give reference of the decisions by military courts, besides the May 9 cases.
Justice Afghan said that as chief justice of Balochistan High Court, he heard appeals against the decisions of military courts. When an appeal comes to the high courts as a writ, the GHQ provides the entire record of the trial.
Justice Mandokhail inquired him on what grounds a trial by military court can be challenged. He asked the question when counsel for the Ministry of Defence Khawaja Haris argued that the case before the court is not under Clause 3 of Article 184 of the constitution.
Advocate Haris replied that if the case is before a court not competent to proceed, if the proceedings are carried out with malice or if the authority is exceeded, the trial can be challenged. If an accused in a military court confesses to the crime, he gets exemption under Islamic law, he added.
Justice Mandokhail remarked that a confession takes place before a magistrate.
Justice Rizvi questioned him if an accused in a military trial does not have the capacity to hire the services of a lawyer, is he provided with a lawyer at the government expenses? Advocate Haris replied in the affirmative.
Justice Mandokhail observed that generally an accused is considered the “favorite child” of the court. Is the accused considered as such in the military court as well? The counsel said that under the rules of the Army Act, the accused is given full protection.
Justice Mandokhail questioned if there is any authority to see whether the procedure has been followed or not? The counsel replied that the entire procedure is followed.
The justice observed that there should be an authority that can review the procedure. The life is very important, he continued.
Justice Rizvi asked him is the appellant given full opportunity [to defend himself] in the appeal. Khawaja Haris said that Rule 63 deals with the responsibilities of the presiding officer of the military court. It is his responsibility to fulfill the requirements of justice and provide an opportunity for a fair trial [to the accused].
Justice Rizvi asked another question about the experience of the presiding officers of the military court. Are they [presiding officers] experienced or is this responsibility given to anyone? Khawaja Haris replied that experience is not a requirement; but familiarity with the Military Act is compulsory.
Justice Mandokhail remarked that earlier, when magistrates and commissioners also conducted trials, they hand down sentence in murder cases. When it was argued that there was no evidence in the case, it was stated that a murder had taken place.
The opportunity for a transparent and fair trial should be provided [to the accused], the justice observed.
Justice Rizvi asked him whether journalists and relatives are given access to the accused in a trial in the military court. Advocate Haris replied that under the law, the accused has the facility, but access is denied due to security reasons.
Later, the Constitutional Bench adjourned the hearing until tomorrow.
