On a Monday filled with legal intricacies, Justice Jamal Khan Mandokhail eloquently stated that Section 94 strictly pertains to individuals governed by the Army Act. These remarks were shared during a pivotal hearing regarding the intra-court appeal challenging the military trial of civilians in the Supreme Court.
The case unfolded before an esteemed seven-member constitutional panel, expertly led by Justice Amin-ud-Din Khan, and included luminaries such as Justice Mohammad Ali Mazhar, Justice Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan, and Justice Shahid Bilal Hassan.
At the commencement of the proceedings, civil society’s advocate, Faisal Siddiqui, emphatically argued that the crux of their legal challenge was not the selection process of the 105 accused subjected to military trial. Instead, the fundamental concern was whether existing laws permitted such actions.
In response to this, Justice Khan astutely pointed out that the transfer of the accused to military jurisdiction was well-documented. He probed the counsel, questioning whether Section 94 of the Army Act had been contested. Advocate Siddiqui replied, asserting that when the accused were transferred to the military, their alleged crimes had yet to be unequivocally established. He contested the unrestricted discretionary authority granted under Section 94, asserting that the officer responsible for transferring the accused wielded boundless power with such authority surpassing even the prime minister’s powers, he contended.
Ultimately, Siddiqui argued for a structured framework to regulate the powers enshrined in Section 94.
Justice Rizvi questioned him whether the police investigators were less efficient than the military’s. Whether there was material [evidence] available at the time of the accused’s handover, the justice continued.
Advocate Siddiqui replied that whether or not the material was on record was not the issue; the core issue was the unlimited power in the handover of the accused. He said that under Section 94, the commanding officer submits the request for the handover.
Justice Mandokhail inquired whether the anti-terrorism court could reject the request for handover. The counsel responded that the court had the authority to reject the request for the handover.
Justice Khan remarked that this defense could have been adopted by the accused before the anti-terrorism court or in an appeal. Justice Mazhar added that the anti-terrorism court had not even issued notices to the accused and had decided the matter suo-motu when the commanding officer’s request came.
Justice Mandokhail observed that Section 94 will apply only to those under the Army Act. After the decision of the anti-terrorism court, the accused came under the Army Act. The anti-terrorism court could have rejected the commanding officer’s request.
Faisal Siddiqui argued that the decision for court martial should have been made before the handover of the accused. He questioned how the handover could take place if the decision for court martial had not been made.
Justice Rizvi inquired whether the reasons for the handover were mentioned in the commanding officer’s request. Advocate Siddiqi responded that no reason was given in the request.
Justice Afghan remarked that reasons were indeed given in the handover request. The officer stated that the accused were involved in crimes under the Official Secrets Act.
Justice Mandokhail observed that the procedure for filing a complaint under the Official Secrets Act is clearly defined in the Criminal Procedure Code. The request goes to the magistrate, who records statements and decides whether an investigation should be conducted.
Advocate Siddiqui said that the request could also be in the form of an FIR. It is established that under the Official Secrets Act, only the federal government can file a request; no private person can file a complaint under this act.
The counsel also mentioned that complaints under the Official Secrets Act can also be made under Army Rules.
Justice Mandokhail remarked that, according to Army Rules, an investigation should take place first. But even for the investigation, a complaint is necessary, the justice added.
Later, the hearing was adjourned until tomorrow.