Verdict on trial by military courts: SC reserves judgement on ICAs

ISLAMABAD: The Constitutional Bench of the Supreme Court on Monday reserved judgment on intra-court appeals (ICAs) against the apex court’s verdict on 9th May protesters’ trial by the military courts.

The bench, on Monday, upon the conclusion of Attorney General for Pakistan (AGP)’s arguments, decided to pass a short order on the ICAs within this week.

A seven-judge Constitutional Bench, 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 had been hearing the case since November 2024.

AGP Mansoor Usman Awan made submission on three points; detail of attacks on May 9 incidents; interim order passed on July 21, 2023 during the hearing of Pakistan Tehreek-e-Insaf (PTI) and others’ petitions in the main case; and the “right of appeal” to civilians tried by the Court Martial.

Mansoor stated that this Court in the cases of 18th Amendment regarding appointment of judges, and granting extension in the service of Chief of the Army Staff (COAS) had made certain observation, which the Parliament in due deference of the apex court amended the laws.

However, Justice Muhammad Ali Mazhar noted that in COAS’s extension case it was not the observation, but direction was issued to the Parliament to amend the Army Act for extension in the army chief’s service within six months. The attorney general responded that the Court had issued direction as there was no provision for giving extension in the service of the COAS.

Justice Naeem Akhtar Afghan asked the AGP that they have summoned him because of his statement made before the Supreme Court on 21-07-23 regarding “right of appeal” against the verdict of military courts. “We have thought that the government had done some work, but through your reply it seems that nothing has been done so far in that regard,” he added.

The attorney general responded that if the court deems that there should be “right of appeal” then it can give direction to the government, but no direction can be given to the Parliament. He said in the past the Court in many judgments had passed observations for amending or legislating some laws, and the Parliament in due deference legislated or amended certain laws.

Mansoor submitted that “right of appeal” was provided in the Army Act through Section 33A and 33B, and in the appeal reasons are recorded by Court Martial, which could be challenged before the High Court on the basis of three parameters – coram non judice, mala fide and without jurisdiction, laid down in Rawalpindi District Bar Association’s judgment.

Justice Mazhar remarked that the military court’s court order can be challenged before the High Court in writ jurisdiction, adding the entire case of the federation is based on Official Secret Act’s offences included in Section 2(1) (d) of the Army Act for the trial of civilians. The attorney general stated that it is the federation’s stance that Section 2 (1) (d) fall in Article 8(3) (a) of the Constitution.

Justice Jamal Khan Mandokhail questioned when the federation through Supreme Court (Practice and Procedure) Act, 2023, could provide an appeal against the judgment under Article 184(3) of the constitution then why no appeal before judicial forum in the Army Act. He said that this court had stated that appeal is also the fundamental right, which cannot be snatched. Justice Musarrat Hilali inquired why the government is reluctant in providing appeal before the judicial forum.

At the onset of the proceedings, AGP Mansoor provided details about 9th May riots. He said on May 9, 2023 from 3pm to 7pm 39 military installations were attacked, out of them, 23 were in the Punjab, eight in Khyber Pakhtunkhwa, seven in Sindh and one in Balochistan. The installations attacked include General Headquarters, Rawalpindi, Corps Commander House, Lahore, Air Base in Mianwali, ISI offices in Faisalabad, Sargodha and Rawalpindi, and Cantonment Areas in Khyber Pakhtunkhwa.

He contended that these attacks were not spur-of-the moment, but were well-thought and coordinated plans, carried out in the span of four hours. He informed that at 05:40 pm when Lahore Corps Commander House was attacked at that time it was Camp Office of Corps Commander, adding till 09:00 pm the protesters besieged the Commander House.

The attorney general told that for 3 hours and 20 minutes Lahore was under attack and unable to respond to external aggression. He said in the past; i.e. in April 1979, a prime minister was hanged and on 27th December 2007 another prime minister was killed in a bomb blast, but the workers of Pakistan Peoples’ Party did not damage any public property. The political parties were banned or politicians house-arrested but nothing this sort ever happened.

He argued that Pakistan because of its geographical location for the last several decades has been in the state of war covertly or overtly. He said this cannot happen that the attacks on military installations be allowed because of political chaos.

AGP Usman said in army, disciplinary action was taken against three top military officials – Lt-General, Brigadier, and Lt-Colonel. They were “retired fault”, while 14 officers were awarded “severe displeasure”.

Justice Syed Hasan Azhar Rizvi said that in the past against certain restrictions the journalists and politicians as protest used to commit self-immolation or surrendered before the authorities, instead of taking law in their hands or target the military installations.

Justice Naeem Afghan asked the AGP that throughout these proceedings of the case no counsel was allowed to touch the merit of the case. The judge; therefore, told him to refrain from discussing the merit of the cases pending before the military courts.

On interim order dated 21-07-23, the attorney general stated that it had been the practice of this Court that an interim order is merged into the final judgment.

Copyright Business Recorder, 2025