Top court adjourns hearing civilians’ military trial for indefinite period

Chief Justice allows govt to continue with inquiry under Rule 13 of AA

This is not Ziaul Haq’s era and there is no Martial Law in country: CJP.

ISLAMABAD   -  The Attorney General for Pakistan (AGP) Friday informed the Supreme Court of Pakistan that there will be no death sentence for the persons involved in May 9 riots. 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, AGP Mansoor Usman Awan explained the procedure of trial conducted under the Army Act 1952. He informed that as per the investigation conducted so far, there is no case that entails death sentence and life imprisonment. Under Section 7 of the Official Secrets Act (OSA) there is only two-year sentence. He said that Section 3(a) of the OSA will not apply.

The Chief Justice remarked that you mean to say that there is no case of aggravated sentence. The attorney general explained that if there is a case of Section 3(a) then it will fall under Section 3(b). Justice Ayesha questioned the AGP how you can say at this stage that there is no case of death sentence, while the trial has not commenced yet.

Justice Afridi remarked that prima facie as far the inquiry conducted under Rule 13 of the Army Act there is no case of death sentence and even if the charges are of Section 3(a) then those would be treated as charges under 3(b) of the COSA.

The AGP also assured the bench that the reasons will be recorded of the military courts’ verdict and the accused persons will be allowed to engage private counsel of his choice. About the appeal against the military courts’ judgment, he said right of appeal against the final decision of the Court Martial was introduced in the Army Act through an amendment in 1992. The appeal within the army system is heard by an army officer to the rank of Major General.

He explained that after this procedure the accused can challenge the verdict of military court under Article 199 of the Constitution on three grounds (mala fide, coram non judice, and without jurisdiction) laid down in the Rawalpindi District Bar Association case. The persons then can approach against the high courts judgments under Article 185 of the Constitution.

He said that as far the appeal before the judicial forum or retired judge as happens in India is concerned more consideration is required, as there is case of Kulbushan Yadev tried under 2(1)(d) of Army Act and people held on espionage charges, and there is also the matter of international implication.

The AGP sought one month to consider the aspect of providing appeal before ordinary courts, as it may be done through legislation. The Chief Justice allowed the government to continue with the inquiry under Rule 13 of the AA, but directed not to hold trials of those persons arrested in light of May 9 incidents.

The Chief Justice said that if the attorney general’s statement given before the Supreme Court is disregarded then they will summon the relevant authority. The attorney general said that proceeding will be held in open court but only the family members and the counsel will be allowed. He told that the protesters are being kept in room and not in hardened or inhuman condition, and all facilities are accorded, which are given to a person in the detention. The Chief Justice questioned, is it possible that group of lawyers can visit them. The attorney general responded that it may not be possible. The chief justice said, “We appoint a retired judge to visit them and examine the condition whether that is fair and in accordance with the law.” The attorney general asked the bench to grant one month to deliberate on the providing appeal, saying there is an international aspect and the many complications involved. Justice Munib said the tenure of National Assembly is ending in August then how it can pass the law. Chief Justice Umar Ata Bandial cautioned Attorney General for Pakistan “that there should be no trial of persons, and if he goes against his words then we will call the concerned person.” He, however, expressed satisfaction over the cooperation of the government regarding the instant matter. He asked the petitioners’ lawyers to relax as no trial has commenced. Reacting to Sardar Latif Khosa’s remarks, the Chief Justice said: “This is not Zia ul Haq’s era and no Martial Law in the country.” He added, “If Martial Law like situation arises then we will interfere.” Earlier, Khosa, representing Aitzaz Ahsan, one of the petitioners, stated whatever has been happening in the country today had taken place during the tenure of former military dictator Zia ul Haq. He said that still the list of 102 persons has not been provided. He said there is concern of due process, fundamental rights of the persons in custody. Later, the bench deferred the hearing of the case without notifying the next date.

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