ISLAMABAD: The seven-member Constitutional Bench headed by Justice Aminuddin Khan resumed the hearing of the appeal against trial of civilians in the military courts.
Defense Ministry lawyer Khawaja Haris gave rejoinder arguments. “Rejoinders are short,” Justice Muhammad Ali Mazhar told the counsel, adding, “Assist on the points that could not be covered earlier.”
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Khawaja Haris replied, “The opposing lawyers did not give arguments on the decision. There are basically four points that were raised by the opposing lawyers.”
Justice Musarrat Hilali said, “Courts should be formed under Article 175. Is this court also formed under Article 175?” The Bench also asked, “Is there any forum that is not formed under 175 and can try civilians?”
Khawaja Haris said that he will answer on all the points, “I will now complete the arguments on Article 161. There are also written responses on all points.”
Justice Aminuddin said that the lawyers on the other side of the arguments have said that the scope of intra-court appeal is limited. Justice Mazhar added, “This is a constitutional bench, not a high court, so the scope of hearing will be limited.”
Khawaja Haris responded, “The constitutional bench can also send the case back in appeal.”
Justice Jamal Khan Mandokhail said, “Even if we agree with the central decision, we can give our opinion separately.”
The counsel said, “In the FB Ali case, there is no talk of fundamental rights under Clause 3 of Article 6.” To this, Justice Mandokhail said, “Fundamental rights have been exempted in Article 6(3).” Khawaja Haris replied, “If fundamental rights were affected, it would have come under Article 6(1).”
Justice Mazhar said, “The Army Act is specifically for members of the Pakistani Armed Forces.” Khawaja Haris replied, “Article 8(3) of the Constitution of Pakistan states that the Army Act is for the discipline and performance of duties of the armed forces.”
The counsel continued, “Let me tell you that there was no crime of counter-terrorism in the incidents of May 9.” Justice Mandokhail said, “The crime of obstructing the work of a military official comes under the Anti-Terrorism Act (ATC). The second crime in the incidents of May 9 comes under the Official Secrets Act.”
Khawaja Haris said, “Under Article 8(3), it is ensured that the forces can perform their duties properly. It is the responsibility of the legislature to ensure this, the legislature did not limit the Army Act to the forces only.”
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“The question of fundamental rights has come up in the FB Ali case,” Justice Mandokhail said, to which the counsel answered that the FB Ali case was challenged on the basis that fundamental rights were being taken away.
The Constitutional Bench adjourned the hearing of the case until tomorrow. Defense Ministry’s lawyer Khawaja Haris will continue his rejoinder arguments tomorrow as well.