Supreme Court’s Remarks on FIR and Custody: Implications for Military Courts in Civilian Trials

Islamabad: The Supreme Court of Pakistan heard intra-court appeals against civilian trials in military courts. During the proceedings, Justice Jamal Khan Mandokhail made significant remarks, stating that an arrest cannot be made without an FIR, nor can an individual be held in custody without a magistrate’s order.
The seven-member constitutional bench, headed by Justice Ameen-ud-Din Khan, was hearing the appeals regarding the trial of civilians in military courts. At the start of the hearing, Justice Mandokhail emphasized that the lawyer representing the Ministry of Defence, Khawaja Haris, should complete his arguments within 20 minutes, to which Haris agreed and attempted to finish his submission that day.
Additional Attorney General Aamir Rehman noted that if Haris completed his arguments, the Attorney General would provide his statements the following day. Justice Muhammad Ali Mazhar remarked that the Act grants certain fundamental rights, and personnel from the Rangers and FC could approach a service tribunal in case of dismissal from service.
Justice Mandokhail questioned whether the Inspector General of Police hears appeals or if the Superintendent of Police handles cases, pointing out that India also has an independent forum. He further reiterated that no arrest can occur without an FIR, and individuals cannot be held in custody without a magistrate’s order.
Justice Mazhar mentioned that in the cases involving the incidents of May 9, charges under the Official Secrets Act had been registered against the accused, and while the military did not directly file the FIR, the civilian detainees were handed over to the military through Anti-Terrorism Court orders. The legality of their custody remains a matter for debate.
Justice Mandokhail stressed that this case could have profound implications for the future, citing the ongoing discussions on the FB Ali case even decades later.
The Supreme Court adjourned the hearing of appeals against the decisions of military courts until the next day, with Khawaja Haris expected to continue his rebuttal. The Court directed him to complete his arguments within 30 minutes. Justice Ameen-ud-Din Khan further stated that the Attorney General would be heard after Haris’ submission.
During the session, Justice Musarat Hilali humorously remarked that she would ensure no further questions would be raised by the judges, to which Justice Mandokhail assured that no more questions would be asked. Justice Hassan Azhar Rizvi also commented on the frequent mention of the FB Ali case, despite previous restrictions on its mention.
The Supreme Court is set to continue hearing the appeals, which hold critical significance for the future of military trials of civilians in Pakistan.