CB discusses military trials over trespassing

Justice Jamal Khan Mandokhail has observed that if trespassing into a restricted area could result in trial of such a trespasser in a military court then military court trials would become rampant.

"Are cases transferred to military courts because they order severe punishments? Why are trials not held in regular courts? Why is there no independent forum [to file an appeal against order of a military court]," Justice Mandokhail asked on Thursday.

The judge was part of a seven-member constitutional bench (CB) of the Supreme Court which is hearing intra-court appeals against an earlier SC order proscribing trial of May 9, 2023 rioters in military courts.

During the hearing, Justice Muhammad Ali Mazhar noted that "Defense of Pakistan Ordinance" and "Defense Services of Pakistan" are two separate things.

Justice Naeem Akhtar Afghan also noted that entering a restricted area is also a violation. "Now shopping malls have been established in cantonment areas. If a citizen enters such a shopping mall without a pass, then will he also be tried in a military court?"

He said there are cantonment areas in various cities and if military courts are allowed to hold trials of people trespassing into these areas then civilians will come under threat. Justice Mandokhail noted that disputes over trespassing of civilians are very common in Quetta cantonment.

Justice Muhammad Ali Mazhar noted that shopping malls could not be declared restricted areas. He said there are six to seven cantonment areas in Karachi. "The main roads running through these areas are not termed as restricted areas," he added.

Justice Syed Hasan Azhar Rizvi said five to six SC judges live in the Clifton Cantonment area of Karachi and that area is not notified as a restricted area.

Justice Mandokhail stated that he was once not allowed to enter a cantonment area as he did not have a pass. He said the Official Secret Act, 1923 predates Pakistan and that the Pakistan Army Act, 1952 "is a valid law". However, he emphasized that after the introduction of Article 10-A, the previous things ceased to exist. The CB will resume hearing the case on April 15.