Islamabad: Supreme Court Justice Muhammad Ali Mazhar ruled on Wednesday that individuals who have already been convicted by military courts cannot be retried, dismissing the possibility of retrospective appeals that could reopen cases dating back to 1973.
His remarks came during a hearing of intra-court appeals challenging the trial of civilians in military courts. A seven-member constitutional bench, headed by Justice Aminuddin Khan, resumed proceedings on the matter, which has been a point of legal and political contention.
Key Arguments & Observations
Civil society lawyer Faisal Siddiqui argued that transferring civilians to military custody was unlawful and that such transfers could only be granted after a formal indictment. However, Justice Mazhar countered that an accused person remains an accused even before indictment, emphasizing that the act of indictment does not define criminality.
Siddiqui further pointed out that a previous five-member bench had ruled against military trials, with all judges agreeing on the decision, albeit with differing legal reasoning. He insisted that when judicial conclusions align, all justifications must be considered part of the ruling.
Justice Mazhar, however, observed that each of the five judges had issued distinct judgments rather than supplementary notes, making it necessary to consider them individually. Justice Jamal Khan Mandokhel reaffirmed that all five judges had ruled against civilian trials in military courts.
Retrospective Appeal Rights & Jurisdiction Issues
During the proceedings, Justice Mazhar rejected the argument for retrospective appeal rights, stating that if granted, cases from as far back as 1973 could be reopened. He clarified that military courts have no authority to transfer cases to Anti-Terrorism Courts (ATCs) after sentencing under the Official Secrets Act, as the Army Act does not recognize the concept of an FIR (First Information Report).
Siddiqui countered that extradition requires judicial scrutiny by a magistrate, who must determine whether a military court has jurisdiction over an accused individual. He argued that a court-martial could not proceed based solely on an FIR.
Justice Naeem Akhtar inquired whether any formal ATC order had been issued for transferring accused individuals to military custody. Siddiqui acknowledged such an order existed but stated that no reasons were provided in it.
At one point, Justice Mandokhel, seemingly frustrated, cautioned Siddiqui, saying, “If you continue arguing this way, we may have to hear this case for three months.”
Hearing Adjourned
Justice Aminuddin Khan emphasized that jurisdiction must be determined by the court itself rather than relying solely on objections raised by the parties involved.
The hearing was adjourned until Tuesday, with Siddiqui set to continue his arguments before the larger bench.
