Seven-member bench notes final outcome is conditional with SC judgment. Suspects given concessions in their sentences be released. Suspects who can’t be released should be moved to jails.
ISLAMABAD - The Constitutional Bench of the Supreme Court of Pakistan on Friday conditionally allowed military courts to announce the verdicts of remaining 85 persons, still in army custody, for their alleged involvement in May 9, 2023, riots. Approximately 85 individuals have been held in military custody since May 2023.
A seven-member bench of the Supreme Court, headed by Justice Aminuddin Khan, and comprising Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan conducted hearing of the Intra-Court Appeals (ICAs) against the SC judgment on civilians’ trial by military courts.
The court written order said, “Suspects who can be accorded concessions in their sentences, should be given so and released.” “Suspects who cannot be released should be moved to jails once their sentence has been pronounced,” it added.
The court order allowed the military courts to pronounce verdicts, including those already acquitted, in trials that have been pending for more than a year. However, in case the SC in its final verdict upholds its Oct 23, 2023 ruling, the acquitted persons can legally be tried by an anti-terrorism court or any other relevant court since the military trial and its verdict would be null and void, but could possibly benefit from the constitutional protection against double jeopardy. During Friday’s hearing, Justice Mandokhail sought arguments on whether the Pakistan Army Act, 1952 sections struck down by the court earlier were in line with the Constitution. “Can the Army Act be amended to bring every person under its jurisdiction?” he asked.
When Justice Mazhar sought the reasons for striking down the PAA sections, Justice Mandokhail remarked, “This aspect should also be kept in mind that the Army Act was enacted before the 1973 Constitution.”
Khawaja Haris, representing Ministry of Defence, contended that there were “errors” in the apex court’s original verdict, at which Justice Mandokhil took exception: “Do not dishonour a court decision to this extent by calling it erroneous.” Haris then apologised, saying his words were “not of a legal nature”.
Justice Mazhar sought details of the May 9 incidents. “Currently, we only have the Corps Commander House matter before us. Let us know if the case is to be limited only till the Corps Commander House [attack],” he said.
AAG Aamir told the court that “all details were received earlier this morning”, adding that he would submit them formally in the form of a miscellaneous application.
Justice Hilali questioned what would happen to the trials held under the PAA sections declared unconstitutional by the SC earlier. “Someone must have been sentenced under them before May 9 [incident],” she added.
Haris contended that usually, verdicts issued before the relevant sections were struck down had protection. Upon that Justice Hilali remarked that it would be akin to “prejudice against those suspects”.
Justice Mandokhail said, “No one joins the army by force, but of their will. Those joining the army know that the Army Act would be applicable to them.” “Under the Army Act, one does not have their fundamental rights. The Army Act was constituted for the rules and discipline of employment in the army,” he added.
Kh Haris contended that no one joins the army with the intention of crime. The fundamental rights are revoked upon committing a crime, he said.
Justice Mandokhail then asked whether the court would be limited to the appellant’s request when hearing an appeal. He added, “Can the court also review other aspects of the decision?”
Justice Amin observed that “respondents could be limited to their objections but not the court”, to which Justice Mandokhail said he wanted to be satisfied since it was a serious matter. Kh Haris contended that if the Constitution’s Article 8(3) (a) “did not provide fundamental rights, then it could not be challenged in a military court”.
Justice Hilali said that the matter before the Court is not of fundamental rights but of civilians and non-civilians. Justice Mandokhail asked whether the counsel did not trust civilian courts, while Justice Amin asked him how much more time he needed for his arguments.
Haris replied he would require “some more time” for his arguments, at which Justice Amin said the hearing was being adjourned until the winter break was over.
“It is hoped that the case of military trials will conclude in January. Once this case is decided, we will fix for hearing the petitions against the 26th Amendment for January’s second week,” the judge stated. “We have a lot of cases in the pipeline, including those on the 26th Amendment,” he said.
Earlier, a five-member larger bench, headed by Justice Ijaz ul Ahsan and comprised Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A Malik on 23-10-23 by a majority of 4-1, 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. The judgment 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 was 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.
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 the intra court appeals (ICAs). In March, a six-member SC bench had also conditionally allowed military courts to pronounce reserved verdicts in the cases. It had also modified its December 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.