The Supreme Court’s (SC) constitutional bench on Monday rejected the federal government’s request allowing military courts to announce verdicts of completed trials of civilians allegedly involved in last year’s May 9 riots.
The case pertains to the trial of more than 100 civilians for their alleged role in attacks on army installations during the riots that followed ex-premier Imran Khan’s arrest on May 9, 2023.
In a widely praised ruling last year, a five-member SC bench — comprising Justices Ijazul Ahsan, Munib Akhtar, Yahya Afridi, Syed Mazahar Ali Akbar Naqvi and Ayesha Malik — had unanimously declared that trying the accused civilians in military courts violated the Constitution.
The apex court had declared that the accused would not be tried in military courts but in criminal courts of competent jurisdiction established under the ordinary or special law of the land.
However, on December 13 last year, in a 5-1 majority verdict, the SC conditionally suspended its own Oct 23 ruling — albeit by a different bench — pending a final judgement as it heard a set of intra-court appeals (ICAs).
On March 27, the SC had conditionally allowed military courts to pronounce reserved verdicts in the cases. It had also modified its Dec 13 injunction, ordering that military courts could commence trials but they would not convict or acquit any suspect until the pendency of government-instituted ICAs.
Today, a seven-member constitutional bench — led by Justice Aminuddin Khan and including Justices Jamal Khan Mandokhail, Naeem Akhtar Afghan, Muhammad Ali Mazhar, Hassan Azhar Rizvi, Musarrat Hilali, and Shahid Bilal Hassan — resumed hearing the ICAs.
Senior counsel Khwaja Ahmad Hosain appeared on behalf of former chief justice of Pakistan (CJP) Jawwad S Khawaja, who was one of the petitioners challenging the military trials. Analyst Hafeezullah Niazi, whose son Hassaan Khan Niazi is in military custody, was also present, while Additional Attorney General Aamer Rehman appeared as the state counsel.
During the hearing, the court rejected the request of Justice Khawaja’s counsel to not resume hearing the ICAs until petitions challenging the 26th Amendment — under which the current bench has been constituted — were decided. The SC also imposed a fine of Rs20,000 on the former CJP.
It also dismissed the AAG’s plea that the SC allow military courts to pronounce verdicts in cases in which the suspects’ trial had been completed.
The hearing
At the outset of the hearing, Justice Khawaja’s lawyer Hosain requested that the court not hear the military court case until the petitions against the 26th Constitutional Amendment were decided.
Upon being asked if he accepted the constitutional bench, the lawyer replied that he did not accept its jurisdiction.
At this, Justice Mandokhail asked the counsel to leave the courtroom, remarking: “You do not have a loved one in custody which is why you want a delay. If you do not accept the jurisdiction of the court then you can leave.”
The lawyer then took the position that the constitutional bench was nominated by the judicial commission and if the 26th amendment was nullified then the decision under the bench would also be invalid.
At this, Justice Muhammad Ali Mazhar remarked: “You are using delay tactics. Such applications come up in every hearing. If the 26 Amendment is nullified, the court’s decisions are protected.”
Justice Mandokhail remarked that the SC was working under the constitutional amendment and any benches that were being formed were in accordance with the amendment’s laid out procedures, adding that a bench constituted under the same amendment would also be the one to hear challenges against it.
Justice Mazhar asked Hosain whether those with relatives in custody over cases in military courts also wanted the same as him while Justice Mandokhail asked Hafeezullah if he wanted to continue with the case since his son was in custody.
Hafeezullah replied that he wanted to continue with the case.
Meanwhile, Justice Hilali told Hosain: “Think about those who are in jail. You have no right to a claim in this case.”
The court dismissed the petition to stop proceedings on the ICAs and imposed a Rs20,000 fine on former CJP Khawaja.
During the hearing, the defence ministry’s lawyer, Khawaja Haris, argued that it was wrong to say that civilians could not be tried in military courts, adding that the Army Act was also applicable to employees of private companies working with the armed forces.
Justice Jamal Khan Mandokhail remarked that civilians who worked in ordinance factories were in a different category to which Haris responded that the Army Act mentioned that.
Meanwhile, Justice Mazhar said that Haris’ case did not fall under the relevant section of the Army Act while Justice Hilali questioned whether corps commanders declared their houses as office when using them as such.
“How true is it that this idea came later that the corps commander’s house was also an office?” she asked.
Justice Afghan asked how the anti-terrorism courts (ATCs) handed over the suspects to the military and questioned whether there was any order available on the ATCs’ reasons.
Meanwhile, Justice Rizi asked how the trial of the suspects in the Army Public School (APS) massacre was conducted to which Haris said the trials were held after the 21st amendment was passed.
Later on in the proceedings, the AAG argued that trials in the military courts were completed and permission should be given for verdicts to be announced to which Justice Hilali that this could not be permitted otherwise the issue of civilian trials in the military courts itself would be resolved.
Justice Mandokhail remarked that the crime of obstructing military personnel from their duty was present in the country’s laws and under them, those who did so would be tried in ordinary courts.
The judges subsequently rejected the AAG’s request and the hearing was adjourned till tomorrow.
Case history
A five-member bench had declared the military trials of 103 civilians null and void as it heard petitions filed by ex-CJP Khawaja, Aitzaz Ahsan, Karamat Ali, and former premier Imran Khan.
Prior to the formation of the constitutional bench under the 26th Amendment, the ICAs were being heard by a six-member bench and then by seven judges after the former sought a larger bench.
Last week, Justice Hassan was appointed as the constitutional bench’s eighth member after it emerged that Justice Ayesha, one of the members of the constitutional bench, had recused herself from hearing the appeals as she was one of the five judges that issued the Oct 23, 2023 verdict.
The appeals against the verdict had been filed by the then-caretaker federal government as well as the provincial ones in Balochistan, Khyber Pakhtunkhwa and Punjab. Sindh had denied filing a purported plea on the same matter and was not included among the petitions taken up earlier.
The defence ministry had also moved an ICA, requesting the apex court to suspend the verdict’s operation during the pendency of the appeal.
In March, KP Additional Advocate General Syed Kauser Ali Shah had submitted a letter expressing the provincial government’s intention to withdraw the appeal against the Oct 23 ruling.
The next month, a list of 20 individuals had also been furnished before the SC, stating that in pursuance to the SC directions on March 28, the military courts were allowed to resume trial and therefore handed down sentences in cases of lesser punishments.
It said 20 persons were awarded sentences of one year of which 17 served a period of 10.5 months and three persons have served a period of 9.5 months.
While none of the persons have served out a full period of one year, upon confirmation of their sentence, the remaining period of their punishment was remitted by the army chief under Section 143(1)(i) of the Pakistan Army Act, 1952 (PAA).
The order said the convictions would be subject to the decisions of the appeals seized with the court.
During the last hearing in July, Justice Mazhar had observed that the government should ensure that the court’s earlier directions regarding the provision of food and family meetings once a week should be complied with.
