Islamabad, March 3, 2025: The Supreme Court of Pakistan on Monday raised a critical question regarding the transfer of civilian cases from military courts to anti-terrorism courts (ATCs), asking from what stage the trials would resume.
The query was posed by Justice Muhammad Ali Mazhar during a hearing on intra-court appeals challenging the military trials of civilians. The case was being heard by a constitutional bench led by Justice Amin Uddin Khan, alongside Justices Mazhar, Jamal Khan Mandokhail, Hassan Azhar Naqvi, and Naeem Afghan.
Representing civil society, lawyer Faisal Siddiqi argued that the fundamental issue was not the selection of 105 suspects for military trials, but rather whether military courts had the legal authority to try civilians in the first place.
During the proceedings, Justice Amin acknowledged that the transfer of suspects from military to ATCs was a matter of record and asked whether Section 94 of the Army Act had been challenged. In response, Siddiqi stated that the suspects had been taken into custody before their alleged crimes had even been determined. He further contended that Section 94 granted excessive discretionary powers, which had also been challenged in court.
Elaborating on the process, Siddiqi explained that a commanding officer initiates a handover request under Section 94, wielding unchecked authority. In contrast, he pointed out, even the prime minister’s powers are constitutionally restricted, reinforcing the need for a structured legal framework.
The discussion then shifted to the efficiency of military trials versus police investigations. Justice Naqvi questioned whether police investigations were inherently slower and whether sufficient evidence had been available at the time of the suspects’ handover. Siddiqi responded that the issue was not the presence of evidence, but rather the absolute authority in transferring suspects without oversight.
At this point, Justice Mandokhail asked whether an ATC had the power to reject a handover request, to which Siddiqi affirmed that it did. Justice Amin then remarked that such a defense could have been raised before the ATC or challenged in an appeal.
Further concerns arose about whether suspects were notified before a commanding officer’s request was approved. Justice Mazhar specifically inquired whether courts had decided on these requests without informing the accused.
Justice Mandokhail pointed out that Section 94 of the Army Act applies only to those already under military jurisdiction, meaning that once an ATC had taken charge of a case, the military could no longer exert control. He also emphasized that ATCs have the authority to reject a commanding officer’s request for trial transfer.
Siddiqi further argued that a court-martial decision should have been made before placing suspects in military custody, questioning how the handover could occur without such a prior decision.
Justice Naqvi then asked whether the commanding officer’s custody request contained specific reasons. Siddiqi responded that no justification had been provided in the request. However, Justice Afghan countered this claim, stating that the request did cite offenses under the Official Secrets Act.
Justice Mandokhail added that the procedure for filing a complaint under the Official Secrets Act is outlined in the Code of Criminal Procedure, requiring a magistrate to record statements and determine if an investigation is necessary. Siddiqi maintained that only the federal government has the authority to lodge a complaint under this law, not private individuals.
At this juncture, Justice Mazhar raised a crucial question:
“If cases are transferred from military courts to ATCs, from what point will the trial begin? Will it start afresh, or will it be based on the evidence recorded during the military trial?”
Justice Amin then introduced another legal aspect, asking whether the past and closed transaction doctrine could be invoked to validate military trials. Siddiqi countered by emphasizing that these trials were challenged under Article 245 of the Constitution.
In response, Justice Amin clarified that while Article 245 was not in effect on May 9, it was implemented when the petitions were filed.
Following these discussions, the constitutional bench adjourned the hearing on intra-court appeals against military trials of civilians until tomorrow.
