ISLAMABD   -  The federal government Friday filed an Intra-Court Appeal (ICA) through Attorney General for Pakistan Usman Mansoor Awan against the Supreme Court order on military courts dated October 23.

A five-member larger bench of the apex court 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 declared the trial of civilians, arrested following the 9th May incidents, as null and void. It also ordered that they (civilians) be tried by criminal courts established under the ordinary and/or special law.

The ICA stated that the incidents of 09-05-2023 involve targeted attacks on several military installations and establishments across the country in an organized and coordinated manner. The attacks were neither localized nor isolated. This is evidenced by the short span of time during which several military establishments were simultaneously attacked on the evening of 09-05-2023. It added that specifically, perpetrators attacked Corps Commander House, Lahore at 05:40 pm, GHQ at 05:30 pm, PAF Base Mianwali at 05:30 pm, ISI Establishment Civil Lines, Faisalabad at 3:15 pm, Sialkot Cantt. 5:00 pm, ISI Establishment Hamza Camp Rawalpindi at 3:30 pm, Gujranwala Cantt. 7 pm, Bannu Cantt. at 3:35 pm and Peshawar Radio Station in Peshawar Cantt. at 3:00 pm.

At the outset, it is submitted that the Supreme Court Practice and Procedure Act, 2023 has been declared ultra vires the Constitution and the said law has taken effect since 21- 04-2023 i.e. from the date of its commencement in terms of Article 75(2) of the Constitution. In view of the Act having attained constitutional validity, it is submitted, with reverence, that the constitution of the bench in Constitution Petition No. 24/ 2023 is in contravention to the procedure prescribed under section 2 and 3 of this Act. Therefore, it requested that the impugned order/ judgment is liable to be set aside for having been rendered coram non judice and thus a nullity in the eyes of law.

It further said that the Petitions are not maintainable before this Honourable Court in its original jurisdiction under Article 184(3) of the Constitution. C. This Honourable Court has dubbed its original jurisdiction under Article 184(3) of the Constitution as “extraordinary”8 Similarly, it has held9 that “[….] when remedies and forums are available under the ordinary law, then those forums are to be exhausted in the normal course and resort should not be made to the extraordinary jurisdiction of the Supreme Court under which direct Constitutional petition can be filed.”

The challenges raised in the petitions could adequately have been adjudicated by the High Courts in their original constitutional jurisdiction under Article 199 of the Constitution which, inter alia, empowers the High Courts to “make an order [...] as may be appropriate for the enforcement of any of the fundamental rights”. The ICA said that the aforesaid challenges fall squarely within the High Courts’ original constitutional jurisdiction despite the bar contained in clause (3) of Article 199 of the Constitution. This Honourable Court has held, on multiple occasions, that petitions under Article 199 of the Constitution are maintainable notwithstanding the bar contained in Article 199(3) on grounds of mala fide, coram non judice and jurisdictional challenges.

 It maintained that the High Courts, as shown above, have been held competent to judicially review orders transferring cases for trial under the Army Act on the grounds of coram non judice, mala fide and lack of jurisdiction. To the extent of challenging constitutionality of the provisions of the Army Act, there is no bar whatsoever on the jurisdiction of the High Courts under Article 199.

It is submitted that the trial of accused persons – whether military personnel or otherwise – cannot be challenged for being in violation of any of the Fundamental Rights including the rights enshrined in Articles 9, 10-A and 25 of the Constitution. It is also pertinent to highlight that the trials, under the Army Act, were not sought to be conducted against all persons arrested, who were involved in violence on 09-05-2023, but only those concerned individuals who strictly fall within the offences stipulated in the Official Secrets Act. Specifically, only those individuals who infiltrated a “prohibited place”, or committed other like offences, within the meaning of Official Secrets Act, are being prosecuted, under the Army Act. It is further submitted that no new statutory regime or legal instrument has been brought about to try such individuals. Instead, the individuals involved in damaging, destroying and, for that matter, breaking and entering various military establishments are being tried, under the applicable (and already existing) statutory regime of Army Act, read with relevant provisions of the Official Secrets Act.