Islamabad: Supreme Court of Pakistan (SC) on Tuesday rejected a insistence to issue stay order against action of military courts in the hearing of petitions against trial of civilians in military courts while hearing of the case adjourned indefinitely.
The SC six-member bench headed by Chief Justice Umar Atta Bandiyal comprising Justice Aijaz Ul Ahsan, Justice Muneeb Akhtar, Justice Muzahir Ali Naqvi, Justice Yahya Afridi and Justice Ayesha Malik resumed fourth hearing today.
The petitions, separately filed by PTI Chairman Imran Khan, former chief justice Jawwad S Khawaja, legal expert Aitzaz Ahsan, and five civil society members, including Piler Executive Director Karamat Ali, have requested the apex court to declare the military trials unconstitutional.
At the outset of the hearing, attorney general Usman Mansoor Awan apprised the SC the military courts not started any action yet adding that all accused will get time to appoint their counsels.
To which, the CJ said that we are seeing it as positively.
A counsel of PTI chairman Aziz Bhandari said that yesterday Director General (DG) Inter Service Public Relations (ISPR) apprised the nation that the military courts have started trials of civilians.
Saying that there is contradiction in talk of attorney general and the DG ISPR, Bhadari said.
On which, attorney general said that he is firmed on his stance today that no trial of any civilian has started in the military courts.
The PTI counsel told the court in his arguements that the parliament can not give permission of military court for trial of civlians without conducting constitutional amendment. He said that in the 21st amendment a principal has agreed upon in the 21st amendment that for trials of civilians a constitutional amendment is needed.
During the hearing Justice Ayesha Malik questioned that how it will be determined who will be tried in civilian courts or who will be in military courts? Justice Muneeb Akhtar said that if a person is not charged under the army act how army can investigate him?
The CJ remarked that it is not understandable when there is no evidence against someone so how the army can arrest him or her?
Justice Aijaz Ul Ahsan said that as per the record so far there is no charge against arrested persons and how one can be in the army custody?
One of petitioner counsel Ahmed Hussain insisted the court that issue order that during the hearing of the case no civilian will be tried in the military courts.
To which attorney general said that all the accused are in custody only and no one will be given death penalty.
He reiterated that no trial has been conducted for 102 accused who are in custody. The CJ questioned” are you telling that the people in the army custody will be given the right of appointing a counsel”.
Attorney general replied that the right of appointing a counsel will definitely be given under the law.
The CJ said that everyone should know on Eid who people are in custody. Everyone should talk to their family on the EID.
The CJ said that at the moment we are not issuing stay order regarding civilians trials in the military courts.
Proroguing the hearing definitely, first week after Eid Ul Adha it will be apprised when the hearing of the petition will be held.
Attorney General submits details of 102 accused
Attorney General for Pakistan (AGP) Mansoor Usman Awan o, submitting details of 102 accused who were in military custody in connection with the May 9 riots of May 9, informed the Supreme Court that they were being provided all basic facilities.
The CJP observed that it was inappropriate to take actions against somebody without any evidence. The court had trust in the AGP’s statement, he added.
He said the army officers had passion to sacrifice their lives for the country due to their high morale and their morale was very important.
The AGP requested the court not to make public the list of May 9 riots accused, who were in the custody of army. He, however, clarified that so far the trial of not any civilian was being run in army courts as the matter was at investigation stage.
Justice Ayesha Malik asked the AGP to public the list so that everyone knew that who was taken in custody.
The CJP also remarked that the public should know on Eid day that who was in the custody of army. He questioned whether the prisoners had the phone call facility to their family members on daily basis as in many jails such a facility was available.
CJP Bandial observed that being the citizens of Pakistan the prisoners should be taken care. The court was viewing the matter in a positive way, and women, children, journalists and lawyers should particularly be taken care.
The AGP said the accused in army custody had the facility to talk with family members on phone and they also had the permission to meet their families once in a week. However, for availing the facility they had to submit a request.
He further said all the 102 prisoners would be provided books for reading, besides the basic facilities.
Earlier, Justice Ijaz ul Ahsan, addressing the lawyer of Pakistan Tehreek-e-Insaf (PTI), said Article 175 (3) was introduced in 1986, and the current circumstances were different from the court verdicts referred to by him.
Justice Ahsan asked how the accused were being kept in army custody as according to available record none of them been charged.
Justice Yahya Afridi said it would be appropriate if the list of the accused was made public, or their contacts with their families through phones should be arranged.
The AGP said the contacts of the accused with their families on phones would be ensured in next 24 hours. Arrangements were in place to deal with any medical emergency situation, he said, adding the accused had the right to hire the services of lawyers.
Justice Munib remarked that as per army rule, firstly an accused was arrested and then the investigation process against him started.
The civilian accused, he added, could only be tried in military courts in a war like situation. Even a magistrate could not take action against any accused until a police report was submitted. How someone, who did not fall in the ambit of the Army Act, could be investigated by the institution, he asked.
Justice Naqvi questioned when the crime was not on record as per the Army Act then how the anti-terrorism court (ATC) granted custody of the accused.
Justice Yahya Afridi asked under which law the ATC had handed over the custody of the accused to the army. The AGP replied Section-II D(1) was imposed.
The chief justice observed that it was strange that the Official Secrets Act was not available to the bench and asked which crimes fell under Section-II D(1).
PTI chairman’s counsel Aziz Bhandari gave arguments on behalf of his client.
