ISLAMABAD: The Supreme Court Monday reserved judgment in the military court case with the ruling that the short order will be announced during the current week.
A seven-member constitutional bench — headed by Justice Amin-ud-Din Khan — heard the intra-court appeals (ICAs) of the federal government, defence ministry and others against its judgment, declaring the military trial of civilians as unconstitutional.
The other members of the bench included Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan, Justice Syed Hassan Azhar Rizvi and Justice Shahid Bilal Hassan.
The verdict was reserved after Attorney General Mansoor Usman Awan concluded his arguments. Justice Aminuddin Khan said the short order will be announced during the current week.
On October 23, 2023, a five-member larger bench of the apex court — headed by Justice Ijazul Ahsen and comprising Justice Munib Akhtar, Justice Yahya Afridi, Justice Mazahir Ali Akbar Naqvi and Justice Ayesha A Malik — announced the decisions on the petitions challenging the military trial of civilians.
The petitioners, including former chief justice of Pakistan Justice Jawad S Khwaja, former prime minister and PTI founder chairman Imran Khan, Barrister Aitzaz Ahsen, Supreme Court Bar Association (SCBA), Karamat Ali, Zaman Khan Vardag and Junaid Razzak, had challenged the trial of May 9 and 10 suspect in military courts in the apex court under Article 184(3) of the Constitution.
Deciding the instant petitions by a majority 4-1, the court had declared the military trial of civilians as unconstitutional. Later on, the federal government, defence ministry and others filed intra court appeals (ICAs) against the verdict.
On Monday, commencing his arguments, Attorney General Mansoor Usman submitted that there were 39 incidents nationwide on May 9, 23 in Punjab, 8 in KP, 7 in Sindh, and one in Balochistan.
He further told the court that the attacks occurred on GHQ Lahore, Mianwali Air Base, and ISI offices adding that these incidents on May 9 were not coincidental.
He submitted that from 5:40pm to 9pm, the entire corps was inactive. He further submitted that former prime minister Zulfiqar Ali Bhutto was hanged but his party did not respond the way things unfolded on May 9.
Similarly, he said during the Movement for Restoration of Democracy, all parties were banned while the entire leadership of the MRD was imprisoned and Asghar Khan was put under house arrest for three and a half years.
“Even during those times, nothing like what happened on May 9 took place,” he contended. Justice Jamal Khan Mandokhail observed that whether a crime occurred or not was not the issue before the court, rather the matter was about the right to appeal.
“Please address this issue in detail,” Justice Mandokhail asked the AG. The attorney general argued that a crime had indeed occurred and said the army took departmental action over negligence in the Jinnah House attack.
He submitted that three senior officers were retired without pension or benefits. Among them was a lieutenant general, a brigadier, and a lieutenant colonel,” the AG added.
He further told the court that the performance of 14 officers was deemed dissatisfactory and said lack of trust meant they won’t receive any further promotions.
Justice Mandokhail asked whether any criminal proceedings had been initiated against any officer. The AG responded that criminal action was taken only when a crime was committed but it was only a disciplinary action taken for failing to prevent the incident.
Referring to the Army Act, Justice Mandokhail pointed out that both disciplinary and criminal penalties could be applied.
Justice Azhar Rizvi remarked that during Bhutto’s execution, people surrendered for arrest but no public property was damaged.
Justice Mandokhail while raising questions about the intent behind the May 9 incidents asked whether the intention was to record a protest or to attack. The attorney general replied that the incidents occurred on May 9 constituted a crime.
Justice Musarrat Hilali asked the attorney general whether the gate of Jinnah House was climbed over or opened from inside. “If it was opened from inside, then it’s a case of collusion,” Justice Hilali remarked.
The attorney general, however, replied that he would get back with the required information. Justice Naeem Akhtar Afghan warned the AG about discussing the matter on the basis of merit while referring to the events of May 9.
Justice Afghan told the AG that the court did not allow the other party’s counsel for discussing the matter on merit, as it would affect the trails and pending appeals of the accused.
“If we go into the details of May 9 incidents, then many questions will prop up that may not be appropriate for the AG to answer,” Justice Afghan remarked.
He further asked AG whether the general retired without pension was the Lahore corps commander. The AG replied in the affirmative to which Justice Afghan asked whether he had testified in the trial court.
The AG replied that the court would know when the appeal was heard. Concluding his arguments, the attorney general said the Supreme Court could direct the Parliament to legislate on the issue, just as it did in the extension case of former army chief General Qamar Javed Bajwa.
Justice Muhammad Ali Mazhar remarked that in that case, Parliament was given a clear directive and six months to legislate. The attorney general informed the court that 86 convicts had filed appeals so far, and others will also be given the opportunity.