Section 94 will apply to those who are under Army Act: Justice Mandokhail
Pakistan
Advocate Siddiqui replied that when the accused were handed over, the crime had not been determined
ISLAMABAD (Dunya News) – Justice Jamal Khan Mandokhail on Monday remarked that Section 94 would apply only to those who are under the Army Act.
Justice Mandokhail gave the remarks during the hearing of the intra-court appeal against the military trial of civilians in the Supreme Court. A seven-member constitutional bench, headed by Justice Amin-ud-Din Khan, is hearing the case. The bench included Justice Mohammad Ali Mazhar, Justice Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan, and Justice Shahid Bilal Hassan.
As the hearing began, civil society's counsel Faisal Siddiqui argued that the issue was not how the selection of 105 accused for military trial was made. But the real issue was whether the law permits this.
Justice Khan remarked that the matter of handing over the accused is a matter of record. He questioned the counsel has he challenged Section 94 of the Army Act?
Advocate Siddiqui replied that when the accused were handed over [to military], the crime had not been determined.
He submitted that he challenged the unlimited discretionary powers under Section 94. He argued that the officer deciding the military handover of the accused had unlimited authority. The prime minister does not have unlimited powers in this country, he added.
He said that the powers under Section 94 should be structured.
Justice Rizvi questioned him whether the police investigators were less efficient than the military's. Whether there was material [evidence] available at the time of the accused's handover, the justice continued.
Advocate Siddiqui replied that whether or not the material was on record was not the issue; the core issue was the unlimited power in the handover of the accused. He said that under Section 94, the commanding officer submits the request for the handover.
Justice Mandokhail inquired whether the anti-terrorism court could reject the request for handover. The counsel responded that the court had the authority to reject the request for the handover.
Justice Khan remarked that this defense could have been adopted by the accused before the anti-terrorism court or in an appeal. Justice Mazhar added that the anti-terrorism court had not even issued notices to the accused and had decided the matter suo-motu when the commanding officer's request came.
Justice Mandokhail observed that Section 94 will apply only to those under the Army Act. After the decision of the anti-terrorism court, the accused came under the Army Act. The anti-terrorism court could have rejected the commanding officer's request.
Faisal Siddiqui argued that the decision for court martial should have been made before the handover of the accused. He questioned how the handover could take place if the decision for court martial had not been made.
Justice Rizvi inquired whether the reasons for the handover were mentioned in the commanding officer's request. Advocate Siddiqi responded that no reason was given in the request.
Justice Afghan remarked that reasons were indeed given in the handover request. The officer stated that the accused were involved in crimes under the Official Secrets Act.
Justice Mandokhail observed that the procedure for filing a complaint under the Official Secrets Act is clearly defined in the Criminal Procedure Code. The request goes to the magistrate, who records statements and decides whether an investigation should be conducted.
Advocate Siddiqui said that the request could also be in the form of an FIR. It is established that under the Official Secrets Act, only the federal government can file a request; no private person can file a complaint under this act.
The counsel also mentioned that complaints under the Official Secrets Act can also be made under Army Rules.
Justice Mandokhail remarked that, according to Army Rules, an investigation should take place first. But even for the investigation, a complaint is necessary, the justice added.
Later, the hearing was adjourned until tomorrow.
