Supreme Court Hearing on Military Trials for Civilians: Further Deliberations
While the events of May 9 were criminal, the key issue was whether the trials would take place in military courts or civilian courts. Justice Jamal Mandokhel
The court questioned whether cases of political protests were more dangerous than those of terrorists.
ISLAMABAD ( WEB NEWS )
During the ongoing proceedings in the Supreme Court of Pakistan, the Chief Justice of the constitutional bench, Justice Ameenuddin Khan, stated that if an FIR contains 10 sections, 4 of which are under the Army Act and the rest under civilian law, the question arises as to where the trial will be held. He clarified that the 105 individuals who have already been tried in military courts will not face a retrial, while the remaining 5,000 individuals will be tried in civilian courts.
Justice Jamal Mandokhel remarked that it would be unjust for individuals sentenced in military trials to undergo a civilian trial thereafter, suggesting that this could lead to prolonged legal proceedings. He added that while the events of May 9 were criminal, the key issue was whether the trials would take place in military courts or civilian courts. He emphasized that the court had not granted a clean chit to the accused, meaning the verdict did not acquit them.
In reference to the 21st Amendment, Justice Mandokhel pointed out that political party cases would not be tried in military courts. He acknowledged that a crime had occurred, with no doubt about its occurrence. He also referenced the Anti-Terrorism Law, which provides harsher penalties for such crimes, and emphasized that even terrorists are given rights and a fair trial. The court questioned whether cases of political protests were more dangerous than those of terrorists.
Justice Muhammad Ali Mazhar remarked that of the more than 5,000 accused individuals in the May 9 incident, 105 were tried in military courts. He raised the question of where the trial would have taken place if the accused had committed murder, robbery, or car theft.
Justice Syed Hassan Rizvi noted that tearing a police officer’s uniform is a crime under the Pakistan Penal Code, and in the case of the May 9 incident, there were attacks on various military installations, including the Corps Commander’s house in Lahore, where the entire house was burned down, and simultaneous attacks on military camps, offices, and Radio Pakistan buildings in Peshawar. He pointed out that although people used to protest in places like liquor stores, this time, military installations across multiple cities were attacked at the same time. He emphasized that while a crime had occurred, it was necessary to distinguish between terrorists and civilians.
Justice Rizvi also commented that the court should be presented with evidence showing that the accused entered the premises and carried out the attacks. He asked how many individuals had testified and how many had become witnesses, revealing the instigators behind the attacks.
The bench directed Khawaja Haris Ahmed, the counsel for the Ministry of Defence, to present his final arguments on Monday. The seven-member larger bench, headed by Justice Ameenuddin Khan and consisting of Justice Jamal Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan, and Justice Shahid Bilal Hassan, continued to hear the 39 intra-court appeals filed against military trials for civilians. Khawaja Haris’s arguments could not be concluded during the session.
Further Arguments in the Court Regarding Military Trials and Legal Provisions
On Monday, Khawaja Haris continued his arguments, stating that the Army Act and its rules provide a complete procedure for a fair trial. Justice Jamal Mandokhel asked Khawaja Haris which decisions he agreed with or partially agreed with from the rulings of Justice Muneeb Akhtar, Justice Ayesha A. Malik, and Justice Yahya Khan Afridi regarding military trials of civilians. Khawaja Haris replied that he did not agree with any of the decisions. He stated that Justice Ayesha Malik had declared Section 2(1)(d)(1) as inconsistent with a fair trial, while Justice Afridi did not comment on the legal sections, and Justice Yahya Afridi stated that he was bound by decisions of larger benches on legal sections.
Justice Jamal Khan Mandokhel remarked that past decisions do not apply to the May 9 cases. Khawaja Haris stated that there is a significant difference between public protests and attacks on military installations. Justice Jamal Khan Mandokhel inquired about the majority opinion in the 21st Amendment case. Khawaja Haris responded that the majority decision in the 21st Amendment case was that of 8 judges, who upheld the amendment in their own manner.
Justice Jamal Khan Mandokhel added that the 21st Amendment was upheld by more than 8 judges. He then directed the court staff to present the case records regarding military trials of civilians. When the records were presented, it was noted that a notice had been issued to the Attorney General for assistance. Justice Muhammad Ali Mazhar remarked that a notice had been issued to the Attorney General for assistance. Justice Syed Hassan Azhar Rizvi pointed out that arguments had already been made on Section 2(1)(d)(1).
Justice Syed Hassan Azhar Rizvi, speaking to Khawaja Haris, asked whether the issue of not hearing arguments on Section 2(1)(d)(1) had been raised in the appeal. Justice Muhammad Ali Mazhar asked whether any judge in the 21st Amendment case had given a judicial review opinion on the FB Ali case. In response, Khawaja Haris, counsel for the Ministry of Defence, stated that no judge had suggested judicial review of the FB Ali decision. Justice Yahya Afridi had given an opinion on the May 9 military trials, stating that the Federation had not been fully heard on the provisions of the Army Act.
Additional Attorney General Chaudhry Amir Rahman argued that the bench had directed the Attorney General to focus on the incidents of May 9 and 10, rather than the sections of the Army Act. Justice Muhammad Ali Mazhar expressed concern, saying it was strange that the bench had initially told them not to discuss the sections of the Army Act and later declared some of the sections unconstitutional.
The Additional Attorney General replied that Advocate Faisal Siddiqi had stated in court that they had not challenged the sections of the Army Act. Justice Muhammad Ali Mazhar, speaking to Advocate Faisal Siddiqi via video link, asked if he had heard this. Faisal Siddiqi confirmed that he had said the case should be considered under the Constitution instead of the Army Act, and other petitions had been filed challenging the sections of the Army Act regarding the May 9 incidents.
Khawaja Haris argued that before declaring Sections 2(1)(d)(1) and 2(1)(d)(2) of the Army Act unconstitutional, the Federation should have been fully heard. He emphasized that the court’s focus had been on the events of May 9 and 10, not on the sections of the Army Act, and that there is a difference between protests and attacks. Justice Jamal Khan Mandokhel responded that the law had been challenged, which is why the Attorney General had been issued a notice for assistance in the bench’s first order.
Justice Jamal Khan Mandokhel, addressing Additional Attorney General Chaudhry Amir Rahman, said that if both Khawaja Haris and the Attorney General present arguments, it would take more than a month to complete. Chaudhry Amir Rahman clarified that he was appearing on behalf of the Attorney General’s Office for assistance and that the Attorney General would present the arguments.
Justice Jamal Khan Mandokhel stated that what happened on May 9 was a crime, but the question remains whether the trial will take place in military courts or civilian courts. He noted that the court had not given a clean chit, stating that the accused had been acquitted. Khawaja Haris mentioned that the Supreme Court’s decision in the Liaquat Hussain case, with 9 judges, upheld the FB Ali case. Justice Jamal Khan Mandokhel replied that in the 21st Amendment case, the majority of judges had recognized the FB Ali case.
Justice Ameenuddin Khan pointed out that the order of July 21, 2023, only discussed the May 9 incident. Justice Muhammad Ali Mazhar commented that crimes are defined in the legal code, and the relevant crimes should be considered from the law books. He added that Section 302 of the PPC addresses murder, and the crimes under the Official Secrets Act apply only to those specified in the Act. He further mentioned that the amendment to the Official Secrets Act in 2023 could not be applied retroactively, and if a crime falls under the Army Act, the trial would take place in a military court.
Justice Jamal Khan Mandokhel remarked that the 21st Amendment states that cases involving political parties would not be tried in military courts. He stressed that there is no doubt that a crime occurred, and the Anti-Terrorism Law imposes harsher penalties for these crimes, with no possibility of pardon. He added that even terrorists are given their rights and a fair trial, and the question arises whether political protest cases are more dangerous than those involving terrorists. He noted that due to the 21st Amendment, political cases were brought before military courts.
Justice Jamal Khan Mandokhel further emphasized that every criminal case has its own facts and questioned whether the facts of the May 9 incident fit with the FB Ali case. Khawaja Haris responded that there is a limit to political activity and that an attack on state property is not a political activity but an attempt to breach national security.
Justice Jamal Khan Mandokhel said that without the 21st Amendment, military trials for terrorists could not have taken place. Khawaja Haris countered that the 21st Amendment’s legislation was aimed at addressing various crimes and individuals. Justice Syed Hassan Azhar Rizvi mentioned that tearing the uniform of a police officer is a crime under the Pakistan Penal Code, adding that the attack on the Corps Commander’s house in Lahore, where the entire house was burned, and similar attacks on military installations in multiple cities on May 9, were criminal acts. However, he noted that there must be a distinction between terrorists and civilians.
Justice Musarrat Hilali asked if there had been any attack on a police station that day. Justice Muhammad Ali Mazhar inquired about the number of locations and cities attacked. Khawaja Haris listed the locations: Corps Commander House in Lahore, Gujranwala Cantt, GHQ Rawalpindi, ISI Office Faisalabad, Radio Station Peshawar, Bannu Cantt, and Mianwali Air Base.
Justice Jamal Khan Mandokhel questioned why, if there was an attack on the Parliament, it was not tried in a military court, considering Parliament is the supreme institution. Justice Syed Hassan Azhar Rizvi also added that an attack on the Supreme Court should also be considered. Khawaja Haris reiterated that the case revolves around Section 2(1)(d)(1) of the Army Act.
Justice Muhammad Ali Mazhar pointed out that out of more than 5,000 accused in the May 9 incident, 105 had been tried in military courts. Justice Syed Hassan Azhar Rizvi stated that in practice, if a military personnel and six civilians commit murder or a robbery, the civilians are tried separately, while the military personnel undergo a court-martial.
Justice Muhammad Ali Mazhar remarked that only one father had come forward individually in the case. Khawaja Haris stated that the attack on military installations on May 9 involved illegal places, which was a factual question, and that the Supreme Court could not examine these facts. Justice Muhammad Ali Mazhar clarified that no convicted person from the May 9 incidents had been prevented from filing an appeal or a mercy petition.
Justice Ameenuddin Khan confirmed that the court had already stated that they would provide time for appeals. Justice Syed Hassan Azhar Rizvi remarked that evidence could have been shown that the accused had entered the premises and committed the acts. The Additional Attorney General stated that photographic evidence had been presented.
Justice Syed Hassan Azhar Rizvi asked whether any military personnel were injured or killed, as the photos only showed property damage. He inquired whether any of the 103 individuals were accused of injuring or killing a military officer or carrying any items away. Justice Jamal Khan Mandokhel asked if any items had been recovered from the accused. Khawaja Haris responded that they could present the evidence if needed, confirming that the attackers were armed and that some people had been injured. He promised to provide further judicial assistance on the matter.
Justice Musarrat Hilali Asked About the Status of Trials for Civil Offenses in FIRs
Justice Musarrat Hilali asked what had happened to the trials of civil offenses listed in the FIR. Justice Syed Hassan Azhar Rizvi inquired whether any military personnel or their families had been killed. Justice Jamal Khan Mandokhel questioned whether anyone among the individuals involved had died. Justice Jamal Khan Mandokhel also stated that military courts are bound to follow the procedures outlined in the Army Act, and if this procedure is not followed individually, an appeal can be filed.
Justice Syed Hassan Azhar Rizvi, speaking to Khawaja Haris, said, “You can present it in your own way, however you wish.” Justice Musarrat Hilali asked what had happened to the sections under the PPC (Pakistan Penal Code) and the Anti-Terrorism Act. Justice Muhammad Ali Mazhar remarked that trials cannot take place in two places simultaneously. Justice Ameenuddin Khan asked what would happen if there were 10 sections in an FIR, four of which fell under the Army Act, and the rest were civil offenses—where would the trial take place?
Justice Muhammad Ali Mazhar, speaking to Khawaja Haris, asked, “Will you be handling the case for all the sections? There are 105 individuals; the charge must have already been framed.” Justice Musarrat Hilali shared her experience, saying that on May 9, she was traveling with security personnel in civilian clothes when heavy gunfire occurred on the road leading to the cantonment, and the police had to stop her from proceeding. She asked whether trials had occurred under sections other than the military provisions, as the army had only tried the crimes related to attacks on military installations.
Justice Muhammad Ali Mazhar asked, “If the accused had committed murder, robbery, or car theft on May 9, where would their trial have taken place?” Justice Jamal Khan Mandokhel remarked that it would be unjust to have a military trial followed by a civil trial, as this would prolong the cases for a lifetime. Justice Musarrat Hilali added that this wouldn’t mean serving a sentence and then facing additional charges outside the military provisions. Justice Ameenuddin Khan mentioned that if 105 accused individuals had been tried in military courts, they wouldn’t be tried again, but the remaining 5,000 individuals would face trial in civilian courts.
Justice Musarrat Hilali noted that the FIRs she reviewed did not initially include sections under the Army Act, but these were added later. She asked about a case in the Hushangri area of Peshawar where a large arms shop had been looted—where would that case go, as someone had been harmed and a robbery had occurred? Justice Syed Hassan Azhar Rizvi suggested that it was possible that an FIR had been filed for that incident.
Justice Syed Hassan Azhar Rizvi, speaking to Khawaja Haris, also asked how many people had testified and how many had become state witnesses, stating that he wanted to know who ordered the attack. Justice Muhammad Ali Mazhar mentioned that in one FIR, 18 sections were included, three of which related to military courts, but the trial for the remaining 15 crimes had to occur elsewhere. Justice Jamal Khan Mandokhel insisted that the trial for the remaining offenses should also take place in military courts.
Subsequently, Justice Ameenuddin Khan announced that the hearing would be postponed until Monday and that the entire day would be dedicated to the case. Khawaja Haris requested that the hearing be extended to Tuesday due to important commitments in Lahore on Monday, but the bench’s head rejected this request. Justice Naeem Akhtar Afghan stated that all the cases had been de-listed. Justice Musarrat Hilali remarked that Khawaja Haris often promised to complete the case in a day but then failed to do so.
Justice Ameenuddin Khan told Khawaja Haris to complete his arguments on Monday, as they also needed to hear from the other petitioners’ lawyers. He instructed the other lawyers to come prepared. Justice Naeem Akhtar Afghan pointed out that the key issue for 28 convicted individuals was that except for two individuals, Muhammad Imran and Jan Mohammad, all others had been tried under section 3 of the Official Secrets Act, and the FIRs did not mention the other sections of the PPC and the Official Secrets Act. He questioned how some individuals went to anti-terrorism courts while others were tried in military courts.
Justice Jamal Khan Mandokhel, addressing Khawaja Haris, said, “Once your basket is full, get a new one, and take one of my questions as well.” Justice Musarrat Hilali emphasized that each crime has a separate charge sheet.
Finally, the bench’s head, Justice Ameenuddin Khan, thanked everyone and the judges left the courtroom.