ISLAMABAD: Justice Musarrat Hilali of the Constitutional Bench on Thursday recalled that PTI had supported military courts when they were established under the 21st Amendment after the 2014 Army Public School (APS) terrorist attack in which 132 children were martyred.

`When in the opposition now, you are saying what happened then was wrong, but the party earlier had supported the amendment,` observed Justice Hilali.

The respondents have now realised the importance of fundamental rights, but on May 9, 2023, they crossed all limits by st orming milit ary inst allations, she stated, adding that she herself was a witness to such incidents in Peshawar.

Senior counsel Salman Akram Raja, however, contended that Article 184(3) cannot be limited and that the accused had the right to an independent court, due process and a fair trial. He was representing the father of Arzam Junaid, who was sentenced to six years by a military court in connection with the May 9 violence.

Headed by Justice Aminuddin Khan, the seven-judge CB had taken up a set of intra-court appeals (ICAs) against the Oct 23, 2023 five-judge order that nullified the civilians` trial by military courts.

Thecounselarguedthatthelegislation pertaining to the army was made in 2015 and in 2017, and regretted that the parents of some children, who lost their lives in the APS attack, were still wandering for justice.

Justice Hilali reminded him that some criminals involved in the APS attack has been hanged.

Justice JamalKhanMandokhail wondered what would be a graver incident than the APS attack or the Quetta bomb blast which left a large number of lawyers dead.

These cases should have gone to military courts, he said.

The counselargued thatin the United Kingdom the court martial is not done by military officers, but by the judges who are appointed on the High Court model. The commanding officer, he added, can refer a case to an independent forum only if it was ofa serious nature.

Justice Amin-ud-Din Khan observed that they should look at their own laws, not that of Britain.

He noted that until today, the F.B.

Ali case has not been declared null and void in any court decision.

Justice Hilali observed that in the present ICA, a request was made to restore sections 2(1)(d)(i) and (ii) of the Pakistan Army Act which were repealed by the Oct 23 judgement.

The real question in the present case is whether a civilian can be court-martialed under the current system, observed Justice Mandokhail.

The counselcontended thatthe court martial of civilians in any case was not possible, adding that the example of British law was given in the context of free and transparent trial.

He argued that had Article175(3) been in place at the time of the F.B. Ali case, the trial would not have gone to the military court.

Justice Muhammad Ali Mazhar observed that when there was no request to declare the F.B. Ali decision null and void in the first round of litigation against May 9 incidents, how the Supreme Court do so now in the present appeals.

When Justice Aminud Din asked why the F.B. Ali case was not challenged in the main case, the counsel replied that the court`s hands were not tied, adding that it was the appeal court and it can look into the F.B. Ali case.

Justice Syed Hasan Azhar Rizvi observed that army hierarchy also had engineering and medical corps and wondered should a judicial corps be also created in the army.

But Justice Mandokhail noted that the army had a proper Judge Advocate General branch.

The counsel said that depriving a person of fair trial by making accusations was a matter of fundamental rights, citing that he had been made a big criminal as he was wanted in the Rangers personnel`s killing case that occurred during the Nov 26, incident since he was facing the allegation of conspiring with Imran Khan to kill the personnel.

If sections 2(1)(d)(i) and (ii) were restored then he will have to appear before a colonel in a military court, he said.

At this, Justice Khan wondered whether his custody had been asked for by the military authorities.

However, the counsel said that since the case pertains to his person, he would not like to discuss it any more.

The case was then adjourned until Tuesday.