Justice Jamal Khan Mandokhail on Thursday observed that [an accused] would be handed over [to army] under the Official Secrets Act after the completion of investigation.
Justice Mandokhail gave the observation during the hearing of intra-court appeal against the trial of civilians in military courts. A seven-member constitutional bench of the Supreme Court is hearing the appeal. The bench under Justice Amin-ud-Din Khan includes Justice Mandokhail, Justice Muhammad Ali Mazhar Justice Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan, and Justice Shahid Bilal Hassan.
The civil society counsel, Faisal Siddiqui, argued that commanding officers had submitted requests for the handover of the accused. The opening words of their requests were: “Based on the initial investigation, the offence under the Official Secrets Act had been committed.”
Advocate Siddiqui submitted that these words in the request were an acknowledgment that the investigation had not yet been completed. The reasons for handing over the accused by the anti-terrorism court were ridiculous. The administrative judge of the court had declared the accused guilty before the investigation was completed, he continued.
Justice Mazhar remarked that the wording of the orders in the Rawalpindi and Lahore courts were exactly the same. Justice Mandokhail noted that it seemed the judges of the anti-terrorism courts had problem with their English language.
Advocate Siddiqui stated that the court, not the administrative judge, could order the handover of the accused. Under Section 59(1) of the Army Act, military officers can be taken into custody by a civilian court for crimes such as murder and others.
Justice Mandokhail remarked that in his view, Section 59(4) also applies to those who come under the Army Act, and the handover under the Official Secrets Act would only be possible after the completion of the investigation.
Advocate Siddiqui submitted that the cases in which handover requests had been made did not contain provisions under the Official Secrets Act. Justice Mazhar observed that one FIR did contain sections of the Official Secrets Act. The counsel replied that he had not seen that FIR in the record.
Justice Rizvi asked him to read the FIR which contained allegations of vandalism outside a military installation. Later, the bench declared a break in the proceedings.
