Justice Hassan Azhar Rizvi has raised the question of whether there is any distinction between individuals involved in terrorist activities, those collaborating with enemy spies, and ordinary civilians.
His comments were made during the hearing of an intra-court appeal concerning the trial of civilians in military courts. He urged the lawyer to clearly differentiate between these groups in their arguments, according to Express News.
The Supreme Court is hearing the case with a seven-member constitutional bench led by Justice Aminuddin Khan.
Khawaja Ahmed Hussain, representing Justice (R) Jawad S. Khawaja, began his arguments by asserting that civilians should never be tried in military courts, as their procedures do not ensure a fair trial. He argued that all five Supreme Court judges had not agreed on the transparency of the military court trial process. Justice Hassan Azhar Rizvi responded by asking whether there was any difference between those who commit acts of terrorism, collaborate with enemy spies, and ordinary civilians. He emphasized that the lawyer should make this distinction in their arguments.
Khawaja clarified that he was not defending terrorists or criminals. He further explained that if court martial for civilians were possible, the 21st Amendment would not have been necessary.
Justice Hassan Azhar Rizvi noted that certain crimes had been included in the Army Act through the 21st Amendment.
Khawaja Hussain argued that if the amendment to the Army Act had been sufficient to allow court martial, there would have been no need for a constitutional amendment. He also pointed out that Article 175 was amended in the 21st Amendment, and there is no provision for bail until a military court decision is made.
Justice Hassan Azhar Rizvi remarked that military courts conduct expedited trials, stating that if a decision is made within 15 days, the issue of bail becomes irrelevant.
In response, Khawaja Ahmed Hussain argued that in military courts, appeals do not go to an independent forum, and defendants cannot choose their lawyer.
Justice Muhammad Ali Mazhar intervened, asking Khawaja to focus on whether the central decision was correct. Justice Hassan Azhar Rizvi referred to the Shaikh Liaquat Hussain case, pointing out that there was no direct conflict between the public and the army at that time. He also mentioned an incident in Karachi where a major was abducted.
Justice Jamal Khan Mando Khel raised an important point about the 21st Amendment, questioning why political parties were excluded from its provisions. He asked why there should be a difference in trial jurisdiction, citing the example of terrorist attacks on Parliament, the Supreme Court, and the GHQ. He argued that all three attacks should be treated the same, with trials for all taking place in the same court.
Khawaja Ahmed Hussain urged the court not to set a precedent that would allow civilians to be tried in military courts. Justice Aminuddin Khan clarified that the court was not opening a new avenue but was simply deciding whether to accept or reject the appeal.
Khawaja Ahmed Hussain also pointed out that the Ministry of Defence’s lawyer had argued that under Article 184(3), the appeal was not admissible. The lawyer stated that Article 8(3A) applies when the request is admissible. If Article 184(3) cannot be applied here, it cannot be applied in any other case. Justice Yahya Afridi agreed that Article 184(3) should be used cautiously but also affirmed that direct applications under this article were admissible in military courts.
