ISLAMABAD - The Supreme Court of Pakistan Wednesday directed the Attorney General for Pakistan (AGP) to get instruction from the federal government that will the right of appeal be available to civilians for their trial before the military courts.
A six-member bench of the apex court headed by Chief Justice of Pakistan Justice Umar Ata Bandial and comprising Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A Malik conducted hearing of the petitions against the trial of civilians by the military courts.
During the hearing, the Chief Justice said that for the first time in Pakistan, military installations and properties were damaged at this massive scale, but there is also a constitutional framework, adding that 102 persons are in custody and there are more than two dozen attacks on the military and civilian sites.
Justice Bandial said that how the due process will be guaranteed described in Liaquat Hussain and Mehram Ali cases. He observed that the sections of Official Secrets Act under that the protesters are charged with carry maximum punishment is two years, while the incident involves more serious offence. None of the petitioners’ counsel has argued that the protesters of 9th May go scot-free, he added. Justice Munib asked the attorney general whether the government thinks Section 3 of Official Secrets Act will not apply. He said under that section even entering in the prohibited areas is an offence. He added, “I would have thought that Section 3 will apply”. He further said that the photographs that you have shown to the bench members, are you not charging them (protesters) under this provision. The seriousness of offence is grave.
The AGP replied that Section 3 of the Act could be attached, adding that “I will take instruction and come back.” Regarding recording of evidence, he said summary of evidence under Rule 13 of Army Act akin to challan submitted in the ordinary courts.
Usman said there should be reasons in the judgments of the military courts, supported by the evidence. He said if the Court directs then there will be reasons in the military courts judgments and right of appeal. Justice Naqvi remarked that the question is who will bring them to this ambit.
The Chief Justice said that if they (protesters) go in Section 3 of Official Secrets Act then the punishment is harsher if they don’t have appeal right. He questioned is there any bar that the appeal can’t be granted by the court, adding the remedy is provided in Rawalpindi District Bar Association (RDBA) case. If the SC can allow appeal on basis of three principles set out in the RDBA judgment, why the court cannot direct for the appeal on the merit of the case.
Justice Bandial said that it was attack on the state institutions. In my memory I don’t recall such an attack not only on the army but also the civilian installations/properties. However, the Court will not allow unconstitutional act.