Military courts verdicts will not be implemented till final decision of apex court, AGP tells SC.

ISLAMABAD  -  The Supreme Court of Pakistan Wednesday suspended its Octo­ber 23 unanimous ruling nulli­fying civilians’ trials in military courts in connection with the May 9 riots. 

The verdict, announced by a six-member bench with 5-1 majority, on a set of intra-court appeals challenging its previous order, stated that the military trials of 103 civilians for their al­leged role in attacks on military installations during the riots on May 9 would continue.

The six-member bench of the Supreme Court, headed by Jus­tice Sardar Tariq Masood and comprising Justice Aminuddin Khan, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, and Justice Irfan Saadat Khan heard the case. Justice Hilali differed with the majority decision.

The bench after hearing the arguments of all parties reserved the order that it announced after half an hour. The short order said that the military courts may continue the trials, but the final judgement will be subject to the outcome of this court. Justice 

A five-member larger bench, headed by Justice Ijaz ul Ahsan and comprising Justice Munib Akhtar, Justice Yahya Afridi, Jus­tice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A Malik on 23-10-23 had declared that military trials of the civilians for their alleged role in attacks on army installations during the riots that followed ex-premier Imran Khan’s arrest on May 9 unconstitutional, illegal and of no legal effect.

It, by a majority of 4-1, de­clared that clause (d) of subsec­tion (1) of Section 2 of the Paki­stan Army Act, 1952 (in both of its sub clauses (i) & (ii)) and sub­section (4) of Section 59 of the said Act are ultra vires the Con­stitution and of no legal effect. The bench had also emphasized that the cases of the suspects in­volved in the vandalism would proceed before criminal courts. 

“It is further declared that any action or proceedings under the Army Act in respect of the per­sons, identified in the list pro­vided to the Court by the learned Attorney General for Pakistan, or any other persons so similarly placed (including but not limited Constitution Petition Nos.24, 25, 26, 27 & 28 and 30 & 35 of 2023 6 to trial by Court Martial) are and would be of no legal effect.

The caretaker federal govern­ment, Defence Ministry, Ministry of Interior, and the interim gov­ernments of the Punjab, Khyber Pakhtunkhwa and Balochistan have filed the ICA against the five-member bench order. The Sindh interim government also had filed the appeal but later on withdrew it.

During the hearing, Justice Tariq refused to recuse from the bench saying that former Chief Justice Jawad S Khawaja, who had filed an application for his recusal from the bench, had himself said that it is upto the judge to decide about recusal.

The bench noted that still de­tailed judgement of the order dat­ed 23-10-23 has not been issued. Justice Tariq asked the defence counsels to wait for the reasoning of the order. Justice Musarrat Hi­lali questioned how without the detailed judgment the short order could be suspended.

Attorney General for Pakistan Mansoor Usman Awan informed that there are good number of persons in the custody of the mil­itary authorities, and the charg­es against some of them, arrest­ed aftermath of 9th May, have been framed. He further said it is in the best interest of the persons in custody that their trial com­menced, adding though the of­fence is severe, but the sentence will be awarded under the provi­sions which is less punishment i.e. not more than three years.

Mansoor also informed that the cases are being tried on merit by military courts, adding the ver­dicts will be announced, but those would not be implemented till the final decision of the apex court. If anyone is not found guilty then he/she be released. He said if the apex court holds that the civil­ians trial by the military courts is unlawful then their judgements would be reversed.

Justice Tariq observed that yesterday 23 soldiers embraced martyrdom in terrorist attacks. He then remarked that if civil­ians are found in the attack then how their trial would commence as the Section 2(1)(d) of Paki­stan Army Act, 1952 has been de­clared null and void.

Salman Akram Raja, who rep­resented some of the civilians in­volved in 9th May incident, said that the terrorist incidents take place all over the world, but their military courts do not try civil­ians. Aitzaz Ahsan contended that in the Peshawar High Court 253 appeals of persons who were sentenced by the military courts. He said former Chief Justice PHC Waqar Seth had dismissed the verdicts of military courts on the grounds that in all cases the con­fessional statements of the ac­cused were the same and the accused were not provided inde­pendent lawyer.

Later, the bench deferred the hearing of the case till 3rd week of January, 2024.