The top court's Constitutional Bench (CB) member, Justice Jamal Khan Mandokhail, remarked on Wednesday that the military court's judge works under the relevant authorities. Justice Mandokhail further observed that courts generally consider the accused as the "favourite child" of the court, referring to the principle that an accused person is innocent until proven guilty.
Justice Mandokhail made these remarks during the hearing of military court cases. A seven-member Constitutional Bench, headed by Justice Aminuddin Khan, resumed the hearing of military court cases. The other members of the CB included Justice Mandokhail, Justice Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi, Justice Musarrat Hilali, and Justice Naeem Akhtar Afghan.
It was the first time that the Ministry of Defence presented the record of a military court trial for a person involved in the May 9 riots in a sealed envelope.
Justice Mazhar observed that investigations are conducted first, followed by the formal framing of charges. He made this observation in response to Justice Hilali’s inquiry as to whether an investigation took place before the charges were framed.
In his arguments, counsel for the Defence Ministry, Khawaja Haris, said that the law clearly distinguishes between a trial and a fair trial.
During the hearing, Justice Azhar inquired whether an accused in a military trial is provided a state-appointed lawyer if they cannot afford one. Counsel representing the Defence Ministry informed the bench that state-funded legal representation is available to those who cannot afford a lawyer.
When Justice Mandokhail asked whether the principle that the accused is the "favourite child" of the court applies to military courts, the Defence Counsel replied that under the Army Act, the accused is given full protection.
Justice Afghan revealed that, as Chief Justice of Balochistan, he had heard appeals against military court verdicts and that decisions were not issued on blank papers, merely declaring an accused guilty or innocent. His remarks indicated that trials in military courts are conducted properly, respecting due process. Justice Afghan added that when cases were challenged in high courts, the General Headquarters (GHQ) submitted complete judicial records, including evidence and procedural details.
Justice Rizvi questioned whether the families of civilian defendants or the media had access to military court proceedings. The Ministry's counsel responded that the law provides access for families and the media, but due to security concerns, access is often restricted.
Justice Rizvi also inquired whether military court judges have prior experience or are appointed without any. He further questioned if a defence officer presiding over a case has legal experience and whether a judge advocate present in court could conduct a court-martial. Khawaja Haris confirmed that a judge advocate always sits alongside military judges.
Justice Hilali raised concerns about the impact of such verdicts on civilians, stating that society is already facing lawlessness. Justice Mandokhail noted that session judges are appointed after decades of legal experience, while some recent cases show that even decisions by benches of eight judges are challenged by two judges. He then asked whether Article 175 of the Constitution provides for military courts. Haris responded that revisiting past military court rulings would be necessary if such a provision were established. He added that military courts exist in several countries and are recognized by constitutional law.
Justice Mandokhail also questioned why narcotics-related cases, fully controlled by the military, require a session judge’s appointment from the Chief Justice of Pakistan for trials. The lawyer argued that military courts have been legally excluded from Article 175 in all previous judicial rulings.
Justice Afghan directed the Defence Ministry to present examples of military court rulings beyond the May 9 cases. Haris presented the records in sealed envelopes and distributed seven copies of the military court decisions to the seven-judge bench.
Haris urged the court to examine the trial process, saying that before proceedings, accused individuals were asked if they had any objections to the presiding officer, and none had raised any concerns.
Justice Mandokhail, however, remarked that records should be reviewed at the appeal stage, making it inappropriate for the court to assess them at this stage. Justice Aminuddin assured that the Supreme Court would not allow the trial to be affected.
Justice Rizvi noted that after reviewing the records, the May 9 cases did not appear to fall under state security concerns. He suggested that making the case records public could reveal the actions of the accused, allowing the public to judge their conduct.
Khawaja Haris replied that such decisions rest with the authorities. Later, the CB, except for Justice Hilali, returned the trial records to Haris.