Military trials case: Crime deserves punishment no matter where trial is held, notes SC’s Justice Mandokhail – Pakistan

Justice Jamal Khan Mandokhail of the Supreme Court observed on Tuesday that a crime should be punished regardless of who committed it and in whichever court its trial was being held.

The remarks came as the SC’s constitutional bench (CB) resumed hearing a set of intra-court appeals against the Oct 23, 2023 five-judge order of nullifying the trial of civilians by military courts involved in the May 9, 2023 riots.

The seven-judge bench was headed by Justice Aminuddin Khan and included Justices Mandokhail, Muhammad Ali Mazhar, Musarrat Hilali, Naeem Akhtar Afghan, Shahid Bilal Hassan and Hasan Azhar Rizvi.

During today’s hearing, Justice Mandokhail said, “Regardless of who committed the crime, there should be a punishment for it. What difference does it make where the trial is held?”

Advocate Faisal Siddiqi, who was representing the petitioners, concluded his arguments in the case today.

He had yesterday urged the CB to transfer the cases of civilians handed maximum sentences to antiterrorism courts (ATCs) while those who had served their jail terms should be considered “past and closed transactions”.

Former Supreme Court Bar Association (SCBA) president Abid Shahid Zuberi represented petitioner Bushra Qamar today while Additional Attorney General Aamir Rehman appeared on behalf of the state. The hearing was adjourned till tomorrow.

On December 13 last year, the CB conditionally allowed military courts to pronounce reserved verdicts of 85 civilians who were still in custody in cases over the May 9 riots.

Subsequently, military courts sentenced those 85 civilians to prison terms ranging from two to 10 years for their involvement in attacks on various military installations. A week later, the mercy petitions of 19 of those sentenced were accepted on humanitarian grounds.

Last week, Justice Mandokhail had observed that if an accused was charged for offences, the right to appeal must be given to contest the charges before the high court. In January, he had noted that “the executive cannot play the role of judiciary”.

Other judges of the CB have also pondered over the trial procedures in civil and military courts during previous hearings of the case.

Justice Afghan remarked in January that trials in a military court were “similar” to those in a civilian court. The next month, Justice Aminuddin wondered how a trial for the same offence committed by a civilian and an army personnel could be held in different courts.

The hearing

At the outset of the hearing, Justice Muhammad Ali Mazhar inquired about the cases, to which Siddiqui replied that there were a total of 105 suspects facing military trials, of whom 20 had been released.

However, AAG Rehman pointed out that another 19 suspects had been released from jail, apparently referring to those whose mercy petitions had been accepted.

Siddiqui then highlighted that there was a tradition in the United States to provide both parties an opportunity once their arguments were over to settle their case under the Offer of Judgement law.

“There is also an alternative to court martial,” the lawyer contended.

At this point, Justice Mandokhail said, “Regardless of who committed the crime, there should be a punishment for it. What difference does it make where the trial is held?”

Siddiqui then asserted that the difference would be akin to the “difference between earth and sky”. “One trial (civil court) is independent while the other is in the military,” he added.

The lawyer argued that the cases over the May 9 violence pertained to “vandalism” only, adding that civilians could be tried in military courts in incidents where “Pakistan’s defence was in danger”.

After Siddiqui concluded his arguments, Zuberi began presenting his contentions on behalf of his client, Qamar.

He recalled that Attorney General for Pakistan Mansoor Usman Awan had informed the court about “legislation for giving the right to appeal”. Announcing the military court sentences, the military had said that “all convicts retain the right to appeal and other legal recourses”.

The hearing was then adjourned till tomorrow (Wednesday), with Zuberi set to continue his arguments.