Justice Muhammad Ali Mazhar - a member of the Supreme Court’s constitutional bench - remarked on Wednesday that individuals who have already faced military courts cannot be retried.
He further stated that if the right to appeal had been granted retrospectively, cases dating back to 1973 would have resurfaced.
A seven-member constitutional bench, headed by Justice Aminuddin Khan, resumed hearings on intra-court appeals against the trial of civilians in military courts.
During the proceedings, civil society lawyer Faisal Siddiqui contended that transferring a civilian to military custody was unlawful, arguing that extradition could only be granted post-indictment.
However, Justice Mazhar observed that an accused remains an accused even before indictment, clarifying that indictment does not define criminality.
Siddiqui further pointed out that there were three separate verdicts by a five-member bench against military trials, wherein all judges concurred on the ruling, albeit with varying reasoning.
He maintained that when judicial decisions align in conclusion but differ in reasoning, all justifications must be considered part of the ruling.
In response, Justice Mazhar noted that the judges had not merely added supplementary notes but had delivered distinct judgments. Justice Jamal Khan Mandokhel reiterated that all five judges had unanimously ruled against the trial of civilians in military courts.
Siddiqui also referred to arguments made by legal expert Uzair Bhandari, who had questioned the scope of intra-court appeals. However, Siddiqui disagreed with Bhandari’s reliance on Justice Mansoor Ali Shah’s remarks in the Practice and Procedure case.
Justice Mazhar responded that Justice Shah had upheld retrospective appeal rights, whereas he (Mazhar) had opposed this view.
“If the right to appeal from the past were granted, appeals would have started arriving from 1973,” remarked Justice Mazhar.
Justice Aminuddin Khan explained that review petitions are decided by the same bench that issues the verdict, whereas intra-court appeals are heard by a larger bench. Since the larger bench was hearing the case for the first time, he stated, it was not bound by prior decisions.
Justice Mazhar further remarked that military courts lacked the authority to transfer cases to Anti-Terrorism Courts (ATCs) after sentencing under the Official Secrets Act, emphasising that the Army Act does not incorporate the concept of an FIR.
Meanwhile, Siddiqui contended that extradition requires judicial scrutiny by a magistrate, who determines whether a military court has jurisdiction over an accused individual.
He argued that a court-martial could not proceed based solely on an FIR.
At one point, Justice Mandokhel cautioned Siddiqui, saying, “If you continue arguing this way, we may have to hear this case for three months.”
Justice Naeem Akhtar also inquired whether any formal ATC order had been issued for the transfer of accused individuals to military custody. Siddiqui acknowledged the existence of such an order but stated that no reasons were provided in it.
Justice Mandokhel further questioned whether a court must independently assess its jurisdiction or if an objection from a party is necessary. Justice Aminuddin echoed this sentiment, emphasizing that jurisdiction must be determined by the court itself.
The hearing was adjourned until Tuesday, with Siddiqui set to continue his arguments.
