Islamabad, February 28, 2025: Justice Jamal Khan Mandokhail has observed that an accused can only be handed over to the military under the Official Secrets Act after the completion of an investigation. His remarks came during a Supreme Court hearing on an intra-court appeal challenging the trial of civilians in military courts.
The seven-member constitutional bench, led by Justice Amin-ud-Din Khan, continued hearing intra-court appeals (ICAs) against the Supreme Court’s earlier ruling on the military trial of civilians. The appeals were filed after concerns were raised regarding the transfer of civilian detainees to military courts without due legal process.
During the hearing, Faisal Siddiqui, representing civil society members, presented an FIR registered against individuals accused of attacking the General Headquarters (GHQ) in Rawalpindi.
Justice Syed Hasan Azhar Rizvi questioned the identification process of the accused, noting that while some individuals had entered the GHQ, others were merely protesting outside. Siddiqui informed the court that those handed over to the military authorities were identified through CCTV footage.
Justice Amin-ud-Din Khan further inquired about the number of rioters transferred to the military’s custody, pointing out that May 9 protests involved a large number of individuals. However, Siddiqui admitted he did not have an exact figure.
Justice Rizvi highlighted the slow pace of trials in civilian courts, stating that in many criminal cases, charges remain unframed for years due to the absence of accused individuals, their lawyers, or deliberate delays.
In response, Siddiqui argued that merely registering an FIR does not justify the automatic transfer of an accused to military custody. He questioned whether the police should be given the authority to hand over civilians to the military without magisterial oversight.
He further cited past court rulings, emphasizing that superior courts have deemed the direct arrest of civilians by the army unlawful. He referenced a Lahore High Court judgment that declared the arrest of renowned poet Ahmed Faraz by military authorities for writing a critical poem unconstitutional.
Siddiqui contended that a person legally becomes an “accused” only after charges are framed. He argued that the transfer of civilians to military custody violated Section 549 of the Code of Criminal Procedure and Sections 29, 30, and 32 of the Anti-Terrorism Act.
Justice Naeem Akhtar Afghan recalled that the complaint against Ahmed Faraz had been filed by lyricist Saifuddin Saif and noted that Faraz had later denied writing the controversial poem.
Addressing Siddiqui, Justice Naeem Akhtar Afghan remarked that his petition did not challenge the constitutionality of the Pakistan Army Act but instead focused on the legality of transferring 103 accused civilians to military custody. He warned that if the court struck down Section 2(1)(d) of the Pakistan Army Act, 1952, Siddiqui’s arguments would become irrelevant.
Siddiqui, however, maintained that he had offered multiple legal arguments, leaving it to the court’s discretion to decide the appropriate course of action. He assured the bench that he would accept any ruling that benefitted the accused.
Justice Mazhar Ali Akbar Naqvi assured the counsel that his arguments would not prejudice the accused, as the matter was not yet sub judice.
Following the deliberations, the bench adjourned the hearing until Monday, with Faisal Siddiqui set to continue his arguments.
