What’s difference between May 9 rioters, APS attackers: SC judge

ISLAMABAD: As the Supreme Court’s constitutional bench hears intra-court appeals against the apex court judgment declaring the trial of civilians in military courts as unconstitutional, Justice Musarrat Hilali on Friday questioned the difference between the civilians involved in May 9, 2023, violence and those in the 2014 Army Public School (APS) Peshawar terrorist attack.

A seven-Amember bench of the Constitutional bench of the Supreme Court headed by Justice Amin-ud-Din Khan heard the intra-court appeals (ICAs) of federal government and ministry of defense against the apex court judgment declaring the trial of civilians in military courts as unconstitutional.

Other members of the bench included Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Musarrat Hilali, Justice Syed Hasan Azhar Rizvi, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.

Khwaja Ahmed Hussain, counsel for former chief justice Jawwad S Khawaja while continuing his arguments reiterated that accused cannot be tried in the military courts, adding that his client is not challenging the Army Act at all.

He submitted that the common civilian is not the subject of military act, adding that the Army Act is applied to the civil servants of armed forces of Pakistan.

Justice Hasan Azhar Rizvi asked the counsel as to whether the Army Act is applied to those who attacked the airbases.

Similarly, Justice Musarrat Hilali observed that a terrorist attack was made on Army Public School (APS) in 2014 while there was a protest on May 9. “What was the difference between the civilians of both the incidents”, Justice Hilali asked the counsel.

Ahmed Hussain replied that the school was attacked by terrorists, adding that after the APS incident, the 21st Amendment was made as all the civilian children were killed in the APS terrorist attack.

“Our case is not out of the constitution and we believe that trial of suspects of May 9 must be conducted but it should not be in the military courts”, Ahmed Hussain contended.

During the course of arguments, advocate Ahmed Hussain also referred to the statement, the ISPR issued on May 9 incidents on which the court asked the counsel if he has any objection to that declaration. “I have no objection to the declaration as the statement said that the May 9 incident found sadness and pain in the entire institution”, Khwaja Hussain submitted, adding that it was said in the statement that there was undeniable evidence of the May 9 incidents.

The counsel however questioned as to how a fair trial can be found in the military courts after the Corps Commanders’ meeting declaration.

Khwaja Hussain contended that the affected party cannot provide a transparent trial. At this, Justice Amin-ud-Din Khan said that the example of the Indian spy Kulbhushan Yadav case exists, in which not only the forces of Pakistan were affected.

Advocate Ahmed Hussain, however, submitted that Kulbhushan Yadav was not discussed in the court’s decision. At this, Justice Hassan Azhar Rizvi asked the counsel if any enemy spy was arrested in the future then where his trial will be conducted.

Ahmed Hussain replied that the trial of the enemy spy will also be held in the special court of anti-terrorism. Justice Amin-ud-Din Khan, however, observed that it is strange that the clause of the law should also be declared invalid and also said that special remedies should still be available.

Justice Muhammad Ali Mazhar inquired whether the forces could use section 2(1(d(2) of the Army Act in the future. Ahmed Hussain replied in negative.

Justice Hasan Azhar Rizvi remarked that so many young men have been martyred, the attackers are civilians while you say that the civilian trial should not be in the military courts but in the Anti-Terrorism Court.

“When the provisions of army Act have been declared as void then how the trial could take place,” Justice Hasan Rizvi remarked, adding that at present two-and-a-half provinces of the country are in the grip of terrorism while the attackers are civilians.

Justice Jamal Khan Mandokhail observed that it is the job of the executive to curb terrorism and produce evidence in terrorism related cases, adding that in the absence of evidence, courts cannot pronounce verdicts and nobody could be sentenced without evidence.

Later, the court adjourned the hearing until February 3 wherein advocate Khwaja Ahmed Hussain will continue his arguments.