The Supreme Court’s (SC) Constitutional Bench on Monday reserved its verdict on the appeals against the decision to declare the trial of civilians in military courts null and void, saying it would announce the verdict later this week.
The development came as the CB resumed hearing a case pertaining to the military trials and the subsequent sentencing of civilians for their role in attacks on army installations during the riots that followed ex-premier Imran Khan’s arrest on May 9, 2023.
The CB resumed hearing a set of 38 intra-court appeals (ICAs) moved by the federal and provincial governments as well as Shuhada Forum Balochistan, among others, against the widely-praised Oct 23, 2023, ruling by a five-judge bench that unanimously declared that trying the accused civilians in military courts violated the Constitution.
The bench — led by Justice Aminuddin and also including Justices Jamal Khan Mandokhail, Naeem Akhtar Afghan, Muhammad Ali Mazhar, Hassan Azhar Rizvi, Musarrat Hilali, and Shahid Bilal Hassan — is reviewing whether the trial of civilians in military courts is constitutional or not.
The hearing
At the outset of today’s hearing, Attorney General of Pakistan (AGP) Mansoor Usman Awan said he would begin by speaking about what happened on May 9.
“Our country is in a state of war almost all year round,” he said. “Army installations were attacked under a well-thought-out plan; on May 9, 49 places were attacked from 3pm onwards,” he said.
He noted that a prime minister had been hanged in Pakistan —referring to the hanging of Zulfikar Ali Bhutto— but even then there was no such protest. “No
political party had attacked the army in the past.”
The attorney general further referenced Pakistan’s political history, saying that all parties had been banned during the Movement for the Restoration of Democracy (MRD).
“The entire MRD leadership was in chains, Asghar Khan was under house arrest for three and a half years,” the AGP said. “Even during this time, no one took a step like people did on May 9.”
“Even if this was a reaction to May 9, it cannot be allowed; ours is not an ordinary country,” the AGP said. “Due to geography, we face a lot of threats.”
Justice Mandokhail remarked that the question before the court was not about whether a crime was committed, saying: “You come to the appeal, tell us about the appeal.”
As he continued his arguments, AGP Awan said that the army took departmental action for negligence in the Jinnah House attack.
“Three senior officers were retired without pension and benefits, including a lieutenant general, a brigadier and a lieutenant colonel,” he said.
“Dissatisfaction was expressed with the performance of 14 officers, dislike and distrust means that they cannot get any further promotion,” the AGP said.
To this, Justice Mandokhail asked whether the army had initiated criminal proceedings against any army officer.
The attorney general said that criminal action would have been taken only when a crime had been committed, noting that departmental action had been taken for not stopping the incidents of May 9.
“The Army Act is clear that departmental action will also be accompanied by criminal punishment,” Justice Mandokhail replied.
The attorney general then said that he would present arguments on May 9, as well as the July 21 decision and appeal.
“There were 23 incidents in Punjab, eight in KP, seven in Sindh and one in Balochistan. General Headquarters, Lahore, Mianwali Air Base, and ISI offices were attacked.
“All the incidents on May 9 were not accidental — the entire corps was inactive from 5:30pm to 9pm. If there was an external aggression on Lahore on May 9, it could not have been responded to,” the AGP said.
Justice Hassan Azhar Rizvi remarked that at the time of Bhutto’s execution, people were making arrests and people set themselves on fire and self-immolated. “No one set property on fire at that time.”
The attorney general was in agreement, saying that his father himself had faced cases as a political activist yet it never occurred to anyone to damage the property by burning it.
Justice Hilali asked whether the gate of Jinnah House was broken open or if someone had opened it from inside.
“If someone opened it from inside, it would be a crime of collusion,” the AGP said, adding that he would check and confirm this.
Justice Mandokhail asked whether what happened on May 9 was done with the intention of committing a crime.
“Was the intention to register a protest or to attack? Maybe the intention was to protest but the matter got out of hand. It should not have gone beyond the limit but it did,” Justice Mandokhail said.
“What happened on May 9 was a crime,” AGP Awan said.
Here, Justice Afghan told the attorney general that he had gone down the wrong path.
“We did not allow anyone to talk about the merits of the May 9 incident. Talking about the merits will affect the cases in the trial and appeal. If we go into the details of May 9, many questions will arise.
“Many questions arise that you may not be able to answer, such as whether the general who retired without pension was the Lahore Corps Commander,” Justice Afghan asked.
Military courts’ sentences
On Dec 13, 2024, the SC’s constitutional bench conditionally allowed military courts to pronounce reserved verdicts of 85 civilians who were in custody for their alleged involvement in the May 9 riots.
Subsequently, on December 21, military courts sentenced 25 civilians to prison terms ranging from two to 10 years for their involvement. Days later, another 60 civilians were handed jail terms of a similar period over the matter.
On January 2, the mercy petitions of 19 accused were accepted on humanitarian grounds, while 48 other pleas have been processed to Courts of Appeal.
The sentencing of civilians by military courts was not only condemned by the PTI, but the United States, the United Kingdom and the European Union also raised concerns, saying the move contradicted international laws.
