A six-member bench — led by Justice Aminuddin Khan and including Justice Muhammad Ali Mazhar, Justice Syed Azhar Hasan Rizvi, Justice Shahid Waheed, Justice Musarrat Hilali and Justice Irfan Saadat Khan — heard a set of intra-court appeals (ICAs) against its Oct 23 unanimous ruling nullifying the military trials of civilians.
The case pertains to the trial of 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 last year.
In a widely praised ruling last year, a five-member SC bench — comprising Justices Ijazul Ahsan, Munib Akhtar, Yahya Afridi, Syed Mazahar Ali Akbar Naqvi and Ayesha Malik — had unanimously declared that trying the accused civilians in military courts was ultra vires the Constitution.
The apex court had declared that the accused would not be tried in military courts but in criminal courts of competent jurisdiction established under the ordinary or special law of the land.
On December 13, in a 5-1 majority verdict, the SC conditionally suspended its Oct 23 ruling, pending a final judgment as it heard a set of ICAs.
The appeals against the verdict had been filed by the then-caretaker federal government as well as the provincial ones in Balochistan, Khyber Pakhtunkhwa and Punjab. Sindh had denied filing a purported plea on the same matter and was not included among the petitions taken up earlier. The defence ministry had also moved an ICA, requesting the apex court to suspend the verdict’s operation during the pendency of the appeal.
In January, a petition was filed by Faisal Siddiqui on behalf of some of those challenging the trials to restrain federal and provincial governments from engaging a private counsel to plead the matter.
At the last hearing on Jan 29, Justice Sardar Tariq Masood, who has since retired, referred the ICAs back to a three-judge committee for the constitution of a larger bench.
On March 19, former CJP Jawwad S. Khawaja, who is one of the petitioners to challenge the military trials, had requested the apex court for an early hearing of the appeals, contending that the continued presence of civilians in military custody was “beyond compensation”.
Today, Khawaja Ahmed appeared before the court as the counsel for ex-CJP Khawaja while Attorney General for Pakistan (AGP) Mansoor Usman Awan and KP Additional Advocate General (AAG) Syed Kausar Ali Shah were also present.
Salman Akram Raja and Faisal Siddiqui appeared as the counsels for their clients who had challenged the trials while Aitzaz Ahsan, who was also one of the petitioners, was also present.
The KP government requested the court to withdraw its appeal against the Oct 23 verdict, presenting a resolution passed by the provincial cabinet.
The SC ordered AGP Awan to furnish the details of the verdicts reserved by the military courts till March 28 and adjourned the hearing till then.
The hearing
At the outset of the hearing, Justice Khawaja’s counsel objected to the size of the bench.
“103 suspects are in custody. Their families want to be included in the case proceedings,” Ahmed said, urging the court to allow the suspects’ families to be present for the proceedings.
To this, Justice Khan replied that the courtroom was fully occupied, adding, “There is no objection on [the families] coming to the court; we will look at this matter.”
Justice Khawaja’s counsel further requested the SC to constitute a nine-member larger bench to hear the appeals. Ahmed argued that his client had sought the same in his petition. “It is my request to the court to urge the SC committee to constitute a nine-member bench,” he said.
At this point during the hearing, the KP government urged the court to allow it to withdraw its appeal against the Oct 23 verdict, presenting a resolution passed by the provincial cabinet.
“We want to withdraw the intra-court appeal,” the KP AAG said, at which the court noted that the plea could not be withdrawn based on a cabinet resolution and told the lawyer to file an official application.
During the hearing, the petitioners challenging the military trials also objected to a private counsel pleading the matter.
Faisal Siddiqui said the AGP had filed five ICAs and “certain ministries” had sought the services of private counsels. “The AGP himself has filed the appeals so why should the public’s money be spent on private counsels?” he asked.
Ex-CJP Khawaja’s counsel urged the court to refer the case back to the judges’ committee to reconstitute the bench. Ahmed recalled that his petition had sought the same earlier.
“If a nine-member bench was formed earlier, then a hearing on the appeals would not have been possible today,” Justice Mazhar observed.
Ahmed argued that as a five-member bench had nullified the military trials of civilians, a 4-2 verdict of a six-member bench striking down the Oct 23 ruling would make the verdict “controversial”.
“It is necessary for public trust in the judiciary that the verdict is not controversial and that such an impression is not given that the verdict is apparent from the bench formation,” he said.
The court then sought details from the AGP about the number of suspects who would be acquitted out of the 103 under custody. It also sought a summary of the verdicts reserved by the military courts in the matter.
The SC ordered that it be informed about “how many suspects could be acquitted and how many could not be”, adding that all details be submitted by March 28.
It also sought information on the suspects who were to be sentenced for shorter periods. “The stay order on the military courts’ case will be amended according to the summary,” it noted.
At this point during the hearing, the court summoned AGP Awan to the rostrum.
Justice Khan asked him whether any of the suspects had been or could be released, to which Awan replied, “Trials have been completed but the verdicts have not been announced.”
“You had said that some cases are of acquittal and some have completed their sentences,” the judge noted.
The attorney general then responded that in some cases, the period of the suspect’s arrest would be considered a part of their sentence. He further said that the verdicts of acquittal could not be announced due to the SC’s Dec 13 stay order on its earlier ruling.
Meanwhile, Raja contended, “There was no stay order on acquittals. He requested that the SC allow the verdicts to be announced for those suspects who could be acquitted.”
“Acquit the suspects that can be; the legal battle of the rest would continue. The main objective is to free those that can be,” Justice Khan said.
Siddiqui then requested the court to broadcast the case proceedings live, at which Justice Khan said the SC would issue an order on that plea.
Justice Waheed noted that the apex court had also struck down two sections of the Army Act in its Oct 23 verdict. “How can provincial governments file appeals? This is the federal government’s case,” he said.
“The provincial governments are showing greater speed than needed,” Aitzaz Ahsan quipped.
Addressing the AGP, Justice Hilali said, “In the previous hearing, you had said that the sentences of some suspects would be decreased. You should have had complete details today.”
The AGP said that only those who had recorded the evidence could tell how many would be sentenced. Ahsan then said, “Have pleaded many cases in military courts. Here, the matters get delayed till the approval of the army chief.”
The AGP replied that the army chief’s approval was only required for cases concerning death sentences.
“Accepting an acquittal verdict would mean acknowledging the jurisdiction of military courts. Detention of the suspects after acquittal from military custody would also be considered unlawful,” Justice Hilali remarked.
Justice Khan remarked, “The matter would end here if the Supreme Court does not even accept the jurisdiction of military courts.
“Someone sentenced for six months should not be kept detained for a year. The fundamental objective of the court is the protection of human rights,” he asserted.
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