KP govt withdraws plea against verdict in military trials case

ISLAMABAD: The Supreme Court (SC) on Monday directed Attorney General for Pakistan (AGP) to address concerns of family members of May-9 accused persons, and provide complete details of those released after completion of their sentences, awarded by the military courts.

The SC also disposed of as withdrawn an intra-court appeal (ICA), filed by the Khyber Pakhtunkhwa (KP) interim government, against the apex court judgment, declaring as unconstitutional the trial of civilians in military courts, allegedly involved in May-9 incidents last year.

A seven-member larger bench, headed by Justice Aminuddin Khan, heard the intra-court appeals (ICAs), filed by the federal government and three provincial governments challenging its judgment in case of trial of civilians in military courts, allegedly involved in May-9 incidents.

Other members of the bench included Justice Jamal Khan Mandokhel, Justice Mohammad Ali Mazhar, Justice Hasan Azhar Rizvi, Justice Shahid Waheed, Justice Irfan Saadat Khan and Justice Shahid Bilal.

During the course of hearing, Salman Akram Raja, counsel for some of the accused, who are presently under military custody for their alleged involvement in May-9 incident, informed the court about frustration of the family members over not being allowed to meet their near and dear ones.

The counsel submitted that the family members of the suspects were not allowed to meet them for five weeks, adding that those family members who met the inmates, were found with faces covered with clothes, and in handcuffs.

Latif Khosa, counsel for some of the petitioners, told the court that the accused had been kept in the custody in pathetic condition. At this, Barrister Aitzaz Ahsan, one of the petitioners, cited a verse of the late poet Habib Jalib which read: “h l t k m tam th mul q t kah ñ th ” (It was mourning of the prevailing circumstances; How come it can be called a meeting with loved ones).

Justice Mandokhel, however, advised Aitzaz Ahsan to focus on the case rather than poetry. Attorney General Mansoor Usman Awan submitted that he was surprised to listen to it as the issue of meeting of the family members with the suspects had already been resolved. He assured the court that he would again look into the matter.

Justice Shahid Waheed asked the AGP that on the last date of hearing, they had asked for providing details pertaining to those who were released by the military courts after completion of their sentences.

The AGP submitted that he could provide such details, but requested that the court should avoid giving any comments on the report. He said if the cases of the accused would come to the high court, the apex court comments might affect the main case.

The court accepted the plea, submitted by Hamid Khan on behalf of the Lahore High Court Bar Association (LHCBA) for becoming party to the matter besides accepting an application of Shuhada Foundation for becoming party to the matter.

On October 23, a five-member larger bench of the apex court, headed by Justice Ijazul Ahsan and comprising Justice Munib Akhtar, Justice Yahya Afridi, Justice Mazahir Ali Akbar Naqvi and Justice Ayesha A Malik, had declared trial of civilians in the military courts as unconstitutional and held that 103 persons and others who may be placed in relation to the events arising from May 9-10 could be tried by criminal courts, established under the ordinary or special law of the land.

Former chief justice Jawad S Khawaja, former prime minister and PTI chairman Imran Khan, Barrister Aitzaz Ahsan, Supreme Court Bar Association (SCBA), Karamat Ali, Zaman Khan Vardag, Junaid Razzak had challenged in the apex court under Article 184(3) of the Constitution, the trial of May 9-10 suspect in military courts.

The court, by a majority 4-1, while deciding the petitions, had declared trial of civilians in military courts as unconstitutional. The court had declared 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 as ultra vires the Constitution and of no legal effect.

Thereafter, the federal caretaker government, Ministry of Defence, Punjab, KP, Balochistan caretaker governments as well as Shuhada Forum Balochistan had filed intra-court appeals, requesting the apex court to reverse its judgment, declaring the trial of civilians in military courts unconstitutional.

The federal government, through Ministry of Law, Justice and Parliamentary Affairs, had filed an ICA under Section 5 of the Supreme Court (Practice and Procedure) Act, 2023, read with Article 184 (3) of the Constitution against the order passed by the apex court in the petitions, challenging the trial of civilians in military courts.

The federal government had prayed to the apex court to allow its appeal, set aside the impugned judgment dated October 23, 2023 and dismiss the petitions that had challenged the trial of civilians in military courts with cost.

Earlier on April 24, a six-member larger bench of the apex court, headed by Justice Aminuddin Khan, while hearing the ICAs, had referred to the committee for constitution of a larger bench for hearing the ICAs, filed against its judgment, declaring the trial of May-9 suspects in military courts.

The court had referred the matter to the committee after Ahmed Hussain, counsel for one of the petitioners, former chief justice Jawad S Khawaja, pleaded with the court that a larger 9-member bench should be constituted for hearing the ICAs as well as in the light of note of Justice Syed Mansoor Ali Shah and Justice Yahya Afridi.

He had submitted that Justice Yahya Afridi, in his note, had observed that the petitioners had raised valid points regarding the constitutionality of these matters. On Monday, during the hearing, Faisal Siddiqui, counsel for some of the petitioners, reminded the court that he had filed an application for live broadcast of the instant ICAs.

Justice Aminuddin Khan, however, told the counsel that live broadcast facility was only available in Courtroom No 1. Hafeezullah Niazi told the court that he and his son Hassam Niazi had been on physical remand for 11 months, adding that his appeal was still pending with the court.

He, while raising the constitution in his hands, asked as to where it is written that a person could be kept on physical remand for 11 months. He cited a quotation once made by Maulana Abul Kalam saying that the biggest injustice occurs in war and judicial system. Justice Muhammad Ali Mazhar asked Niazi to focus on the current appeal.

The judge observed that entertaining of his individual appeal might derail the main appeals, and if his appeal was entertained, many other appeals would also come to the court.

The court also asked Ahmed Hussain, counsel for another petitioner, who was representing former chief justice Jawad S Khawaja, as to whether he had any objection on the current bench. The counsel responded in negative, but requested the court to decide the ICAs at the earliest.

Justice Shahid Waheed asked the AGP to read para 14 of the note, written by Justice Mansoor Ali Shah in the matter of Supreme Court (Practice and Procedure) Act, 2023. It was questioned as to whether the whole case would be re-examined or only relied on a review petition.

“What is the scope of these intra-court appeals in the light of note, given by Justice Syed Mansoor Ali Shah,” Justice Shahid Waheed asked the AG. The judge asked the AGP as to whether the court should hear the ICAs in the scope of revision or as a full appeal.

Justice Shahid observed that the SC was supposed to make rules related to intra-court appeals, which have not yet been made, adding that these rules should have been made so far.

“Intra-court appeal cannot be reconciled with the Law Reforms Act,” Justice Shahid remarked. The judge asked the AGP as to whether the provinces that had also filed the ICAs against the apex court judgment, got approval from their respective cabinets.

The AG replied that in his view, the cabinet approval was not required for filing the ICAs, adding that if the cabinet approval was required, then it would be required in tax cases as well. Justice Shahid then asked the AGP to inform the court from the rules about the procedure for filing appeals in the apex court.

The AGP submitted that if the court accepted the federal government’s ICA, the accused persons would be able to file appeals against the judgment in the SC and high courts in addition to the military courts.

Justice Jamal Mandokhel, while addressing the counsel, representing the Shuhada Foundation observed that last night he was going through the record about the instant case, wherein he found that Jinnah House Lahore was also set ablaze, adding that they would look into it later on, as for how long Mr Jinnah remained in that house situated in Lahore.

Justice Mandokhel asked the counsel that in the past Jinnah Residency in Ziarat, Balochistan, was also set ablaze where Mr Jinnah had spent the last days of his life, and asked the counsel as to where the Shuhada Foundation was at that time and how many applications were filed by the Foundation. Later, the court adjourned the hearing until July 11.