Islamabad, February 26, 2025: Justice Jamal Khan Mandokhail said on Wednesday that all five Supreme Court judges unanimously ruled against the trial of civilians in military courts. His remarks came during the hearing of an intra-court appeal challenging the practice.
Justice Mandokhail is part of a seven-member constitutional bench reviewing the appeal, which also includes Justices Amin-ud-din Khan, Muhammad Ali Mazhar, Hassan Azhar Rizvi, Musarat Hilali, Naeem Akhtar Afghan, and Shahid Bilal Hassan.
During the proceedings, Advocate Faisal Siddiqui argued that a previous five-member bench had issued three separate rulings on military courts. He noted that Justices Ayesha Malik, Muneeb Akhtar, and Yahya Afridi had written individual decisions, but all judges had agreed on the fundamental point that civilians should not face military trials. Siddiqui emphasized that when judges concur on the main issue but differ in reasoning, all their justifications collectively shape the final verdict. He rejected claims that the rulings were divided, maintaining that there was a clear consensus.
Justice Muhammad Ali Mazhar pointed out that the judges had issued detailed rulings rather than supplementary notes, reinforcing the clarity of their stance. Justice Mandokhail reiterated that all five judges had been in agreement on rejecting military trials for civilians.
A major issue in the case is whether anti-terrorism courts (ATCs) had formally authorized the transfer of civilian suspects to military custody. Justice Naeem Afghan questioned whether any official court order permitted such transfers. In response, Siddiqui stated that while some transfer orders existed, they lacked clear justification. He argued that civilians should only be handed over to military authorities after formal charges had been framed against them, asserting that transferring suspects based solely on police reports or initial complaints was legally dubious.
Siddiqui further contended that the Supreme Court could declare military trials of civilians unconstitutional without striking down specific sections of the Army Act. He explained that in previous cases, the court had ruled that while a law could remain in place, its certain applications could be deemed unlawful.
Justice Muhammad Ali Mazhar highlighted the limitations of appeals in military court cases, stating that those already tried under military jurisdiction could not have their cases reheard in civilian courts. He also noted that military courts could not sentence individuals under the Official Secrets Act and then refer the case back to ATCs.
Justice Mandokhail added that the Army Act did not contain a formal provision for registering First Information Reports (FIRs) against civilians. Siddiqui agreed, arguing that before placing any civilian under military custody, a magistrate should review the case and determine whether it falls under military or anti-terrorism jurisdiction.
The Supreme Court bench continued its deliberations, with Justice Amin-ud-din Khan emphasizing that courts must first determine their own jurisdiction before proceeding with any case. Siddiqui warned that limiting the right to appeal in such cases could set a dangerous legal precedent. He dismissed the argument that jurisdictional concerns could be overlooked simply because no objections were raised initially.
The court adjourned the hearing, with further arguments expected in the next session. During the previous day’s proceedings, the Supreme Court referenced former army chief General (Retd.) Qamar Javed Bajwa’s service extension while discussing military trials for civilians, reigniting debate over past legal precedents.
