Justice Musarrat Hilali reminded the PTI’s support for military courts then and their changing stance now.

PTI’s changing stance on military courts:

Justice Musarrat Hilali reminded the PTI stance on military courts. After the 2014 APS attack, the military courts were established under the 21st Amendment act of the Constitution. In that attack, terrorists martyred 132 children. PTI then supported the military courts. Justice Halali observed that once PTI supported the decision and now it is saying the decision was wrong.

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She stated that the respondents now understand the importance of fundamental rights. However, on May 9, 2023, they stormed military installations. She said that the May 9 riots crossed all the limits. Moreover, she also witnessed such incidents in Peshawar.

Argument for fundamental rights:

Senior counsel Salman Akram Raja argued that Article 184(3) should not be restricted. He stressed that, as per this article, every accused has the right to an independent, fair judiciary. Raja was representing the father of Arzam Junaid, who received a six-year sentence from a military court for his role in the May 9 violence.

Supreme Court takes up appeals:

Justice Aminuddin Khan led the seven-judge Constitutional Bench (CB) to hear intra-court appeals (ICAs) against the October 23, 2023, ruling. As per this ruling, the military courts were not meant for civilian trials. The ruling nullified the civilian trial in the military court. The counsel pointed out that laws concerning the army were made in 2015 and 2017. He lamented that the parents of APS victims still seek justice.

Past punishments and APS case:

Justice Hilali reminded the court that some criminals involved in the APS attack had already been hanged. Justice Jamal Khan Mandokhail questioned if there was any incident more painful than the APS attack and the Quetta bomb blast. He suggested that such cases should have been tried in military courts.

Comparison with UK military trials:

The counsel argued that in the UK, courts-martial are handled by judges, not military officers. He explained that if a case is serious, then a commanding officer can only refer a case to an independent forum. Justice Aminuddin Khan disagreed. He said Pakistan should follow its laws instead of the UK’s. He pointed out that the F.B. The Ali case has never been declared void in any court decision.

Debate on civilian court-martial:

Justice Hilali noted that in the present ICA, a request was made to restore sections 2(1)(d)(i) and (ii) of the Pakistan Army Act. These sections were repealed in the October 23 ruling. Justice Mandokhail raised a crucial question: Can a civilian be court-martialed under the current system? The counsel firmly responded that court-martialing civilians is not possible. He used British law as an example of a fair trial system.

F.B. Ali case in military court debate:

Justice Muhammad Ali Mazhar questioned why no request was made to declare the F.B. Ali decision void in the original litigation against the May 9 incidents. Justice Aminuddin Khan also asked why it was not challenged earlier. The counsel argued that the Supreme Court, as an appeal court, could still review it.