Pakistani Supreme Court refers critical jurisdictional issues to a 5-member panel

The Supreme Court of Pakistan has referred a set of critical questions concerning the choice between military and civilian trial to an expanded panel of five justices, according to this report in The Dawn. The article notes:

The questions framed by the court asked: “When a person serving in the Pakistan Army was accused of committing an offence under the Pakistan Penal Code, would an ordinary court set up under the Criminal Procedure Code (CrPC) try the accused or would a forum set up under Pakistan Army Act (PAA), 1952, frame the charges”.

Additionally, the court asked, “Whether an ordinary criminal court is obliged to accede to a request by army authorities to transfer the case to them after closing the matter or it is the discretion of the ordinary court to determine whether or not to grant the request of army authorities”.

Is the court not the ordinary forum to exercise discretion if such a request is received from the military authorities, the court inquired, asking what would be the basis on which such a request could be considered, granted or declined by an ordinary court?

The questions arise from a case involving the unexplained disappearance of several dozen prisoners from a detention facility in Malakand. Similar jurisdictional issues have been raised in several pending cases. Use of an expanded bench will make it more likely that a uniform rule will emerge.