- Justice Mazhar questions where a spy should be tried?
- Justice Afghan says PTI was active legislation on Army Act during its tenure
ISLAMABAD: Supreme Court’s Justice Jamal Mandokhail questioned on Wednesday whether a member of the armed forces, committing an offence at home, would fall under the Army Act’s jurisdiction, and asked for further clarity on the scope of the Army Act.
The remarks came as a seven-member constitutional bench, led by Justice Aminuddin Khan, heard intra-court appeals against military trials of civilians on Wednesday.
Lawyer Salman Akram Raja, counsel for convict Arzam Junaid, presented his arguments before the court.
Senior Advocates – Sardar Latif Khosa, Barrister Aitizaz Ahsan, and Faisal Siddiqui are scheduled to present their arguments in the next session.
During the hearing, Raja argued that the case involved two issues, one of which was related to Article 175. He said that the doors would not be closed as far as fundamental rights were concerned.
Justice Mandokhail inquired whether merging fundamental rights with a specific act could lead to their violation. He further questioned if a soldier, marrying a second time without his first wife’s consent, would be tried in a military court.
Raja responded by calling the Army Act a “black hole,” arguing that any amendments could compromise fundamental rights. He maintained that for an offence to fall under the Army Act, the offence must be directly related to military service.
Providing an example, Raja said that while kite-flying is banned in Punjab, a military officer engaging in the act while at home would not be subject to a military trial but rather civilian law.
Justice Naeem Akhtar Afghan, while addressing Raja, said that during his party’s (Pakistan Tehreek-e-Insaf) tenure, there was active legislation on the Army Act.
To which Raja replied that at that time he had not been joined the party, saying that he had always remained in the opposition.
During the proceedings, Raja also referenced the 1975 FB Ali case, where Section 2(1)(d) of the Army Act was first discussed.
Justice Muhammad Mazhar Ali questioned why the apex court repeatedly reviewed Article 2(1)(d), to which Raja replied that legal frameworks evolve, necessitating judicial review. He added that Article 8(3) does not provide an exception for Article 2(1)(d).
Justice Afghan noted that an ordinance for Article 2(1)(d) was introduced in 1967 and questioned whether its expiration rendered it obsolete. Raja countered by citing the Official Secrets Act, which has been in place since 1923, allowing trials under its provisions before 1967.
Referring to the Kalbhoshan Jadhav case, Raja noted that in the modern era, it is impossible to suspend an individual’s fundamental rights and place them under the control of a commanding officer.
Justice Jamal Mandokhail inquired whether the court is bound by its previous judgments or by the Constitution of Pakistan.
While acknowledging the high regard for Supreme Court rulings, Salman Akram Raja responded that the Court is not bound by them.
Justice Mandokhail then asked, “What if the Constitution is amended?”
Raja replied, “The situation would change,” adding that Article 75 did not exist at the time of the FB Ali trial.
Raja also emphasized that court-martial procedures have evolved globally. He pointed out that trials behind closed doors are no longer conducted in this era, and even for military personnel, a 19th-century style court-martial would be inappropriate in 2025.
At this point, Barrister Aitizaz Ahsan informed the Court that he had represented Major Ishtiaq and Ayaz Sipra in the FB Ali case. He described how the trial took place in Attock Fort jail, with all records destroyed afterward. Lawyers were subjected to body searches before leaving to ensure that no documents were taken out of the premises.
Justice Mandokhail remarked that in the civil services, employees found guilty of misconduct are dismissed but not punished. However, in the armed forces, personnel can face dismissal and legal penalties. He further asked for clarity on the scope of the Army Act.
Justice Mazhar questioned where a spy should be tried, while Justice Hassan Azhar Rizvi asked where would a citizen be tried if they leaked secrets to enemy states.
Raja responded that such trials fall under the Official Secrets Act, which outlines a legal procedure for prosecution.
The lawyer assured the court that he would not present arguments contrary to the Constitution, saying that fundamental rights could not be revoked arbitrarily.
“It cannot be that a commanding officer simply demands a suspect and they are handed over,” he asserted.
Justice Mazhar pointed out that a five-member bench had already struck down Section 2(d), ruling that espionage suspects could no longer be tried in military courts. However, he noted that civilian employees within the army still fall under the Army Act’s jurisdiction.
After the conclusion of today’s arguments, the seven-member bench adjourned the hearing till tomorrow (Thursday).
