ISLAMABAD - The Supreme Court of Pakistan Thursday conditionally allowed the military courts to announce reserved judgments in the cases of May 9, 2023 violent incident.
A six-member bench of the SC headed by Justice Aminuddin Khan and comprising Justice Muhammad Ali Mazhar, Justice Syed Azhar Hasan Rizvi, Justice Shahid Waheed, Justice Musarrat Hilali and Justice Irfan Saadat Khan conducted hearing of Intra-Court Appeals (ICAs) against the apex court’ October 23, 2023 verdict.
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 declared that military trials of the (103) 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. However, a six-judge bench, headed by Justice Sardar Tariq Masood by a majority of 5-1, on December 13, 2023 suspended the order of the five-judge bench. The same bench on January 11 allowed the military courts to continue the trials of 103 individuals, but said that their final judgments will be subject to the outcome of this Court verdict.
The bench directed AGP Mansoor Usman Awan to file the list of accused who could be acquitted and of those cases where the sentence is less than three years and could have the benefit of remission.
On last hearing, Justice Amin had directed the attorney general to submit a list of 9th May accused, who could be released by the military authorities.
Onset of the proceeding, the attorney general informed the bench that he has instruction that 15 to 20 accused can be released before the Eid, adding that would be done after the confirmation of military courts order by the army higher command. He told that in cases where there is major penalty then the confirmation would be by Chief of Army Staff. In lesser punishment cases the remission under Section 382 of the PPC could be given and those persons can go home.
Justice Mazhar let the process be concluded soon and the accused be released one week before the Eid. He asked the AGP to make a mechanism for other accused as well.
Justice Hassan asked the AGP to give the names of those accused who could be released. Usman said that he could give the name after the final order on their cases. He further said that he would submit the names before the Court.
Aitzaz Ahsan that the number of persons who could be released is very small. Justice Mazhar therefore asked the AGP to broad the spectrum, and if more persons could be released then do something. He observed that the sentence under Anti-Terrorism Act is not less than 14 years. He said the judgment of the five-judge SC declared the cases of persons in military custody be tried in the Anti-Terrorism Courts.
Faisal Siddiqui, counsel representing some of detainees, contended that the attorney general had given statement before this Court that none of the accused would get 14 years sentence. He told that the cases against the accused have been registered under Official Secrets Act 1923, and under that there are four types of sentences i.e. one year, two years, three years and 14 years.
Justice Shahid said why not the Court suspend sentences of all the accused in military custody. The attorney general responded that the sentences could be suspended when the order is passed. He said that due to the Supreme Court order the military courts have not passed the verdicts.
Upon that Justice Shahid said the Court can grant them bail. The AGP then said there is no provision of bail in Army Act 1952. He said the detainees could have the benefit of Section 426 of the CrPC. However, Justice Shahid why not we attract Section 497 of the CrPC.
Justice Amin said the SC judgment dated 23-10-23 had 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.
