The Supreme Court’s constitutional bench on Wednesday asked the government why the trial for the Army Public School (APS) attack was not conducted in a military court despite the existence of the Army Act and a link of the crimes to it.
During the hearing on appeals against the trial of civilians in military courts, the bench also questioned why an amendment in the Constitution was required to conduct terrorism trials in military courts.
The constitutional bench, headed by Justice Amin-Ud-Din Khan, heard the intra-court appeal against the decision to try civilians in military courts, with Khawaja Haris representing the Ministry of Defence.
During the hearing, Haris said the nature of the crime determines where the trial would take place. If a civilian’s crime is related to the armed forces, the trial will proceed in a military court, he said.
Justice Jamal Mandokhail responded, asking whether the intent behind the crime could also be considered – whether the purpose was against the country’s interests.
The judge also raised the question about why the cases of attacks on the General Headquarters (GHQ) and Karachi airbase did not proceed in military courts.
He said that the answer to this question was provided in the 21st Amendment case. The defence ministry’s counsel explained that the 21st Amendment case mentioned the attacks on the GHQ, airbases, military, and places of worship.
The counsel further said that the Army Act mandates that if the crime is related to the military, the trial will be held in a military court. Justice Mandokhail asked for clarification on what “related to the military” meant, to which Haris said that it referred to crimes directly tied to the Army Act.
Justice Mandokhail then asked whether the intent behind the crime would be examined if the crime was related to the Army Act. Justice Amin remarked that the accused could raise a defence by arguing the lack of intent during the military trial.
Justice Muhammad Ali Mazhar added that intent could be evaluated during the trial. The counsel for the Ministry of Defence maintained that if the crime was related to the Army Act, a military court would then conduct the trial.
Justice Mandokhail then inquired whether such a link existed in the APS attack. In response, Haris confirmed that there was indeed a connection at the time of the APS attack and noted that one connection is related to an army officer while the other is concerned with the military.
Justice Mandokhail questioned why the APS attack was not trialled in a military court, despite the link and the Army Act being in place at the time and questioned why was an amendment needed to conduct terrorism trials in military courts?
To this, the defence ministry’s counsel replied that the amendment included a wide range of crimes beyond those related to discipline and duties.
The judge further asked where the trial for terrorist acts committed in the name of a terrorist group or religion would be held.
In response, Haris said that such cases would be tried in military courts under the Army Act and could proceed in military courts without constitutional amendments.
After hearing the lawyer’s arguments, the constitutional bench then adjourned the hearing till Thursday (today).
The APS attack refers to the massacre of students of the Army Public School in Peshawar on December 16, 2014, which saw 147 people, mostly school children, being killed in a horrific terrorist attack.
