ISLAMABAD: The Supreme Court’s constitutional bench on Friday conditionally allowed military courts to pronounce reserved verdicts of 85 civilians who were still in custody for their alleged involvement in last year’s May 9 riots.
The development came as a seven-judge bench resumed hearing a case pertaining to the trial of more than 100 civilians for their alleged role in attacks on army installations during the riots that followed ex-premier Imran Khan’s arrest on May 9, 2023.
The bench — comprising Justice Aminuddin, Justices Jamal Khan Mandokhail, Naeem Akhtar Afghan, Muhammad Ali Mazhar, Hassan Azhar Rizvi, Musarrat Hilali, and Shahid Bilal Hassan — specified that the verdicts of the military courts would be subject to its final decision on the appeals against the Oct 23, 2023 ruling.
Passing directives at the end of today’s hearing, Justice Aminuddin Khan, who is heading the constitutional bench, said, “Suspects who can be accorded concessions in their sentences, should be given so and released.
“Suspects who cannot be released should be moved to jails once their sentence has been pronounced,” he added.
Today’s directives allow military courts to pronounce verdicts, including those already acquitted, in trials that have been pending for more than a year.
The court order reads: “The final judgment of 85 persons who are under the custody and facing trial before the military courts, be announced and the remissions admissible to the said persons be granted and persons who can be released after remissions they be released forthwith and the persons who have to yet undergo the sentence awarded to them, their custody be handed over to the concerned jail authorities.
“The learned additional attorney general states that they will be dealt with in accordance with the jail manual. The announcement of judgment will be subject to final determination of these appeals and without prejudice to the rights of the said 85 accused persons.”
In case the SC in its final verdict upholds its Oct 23, 2023 ruling, the acquitted persons can legally be tried by an anti-terrorism court or any other relevant court since the military trial and its verdict would be null and void, but could possibly benefit from the constitutional protection against double jeopardy.
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 violated 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.
However, on December 13 last year, in a 5-1 majority verdict, the SC conditionally suspended its own Oct 23 ruling — albeit by a different bench — pending a final judgement as it heard a set of intra-court appeals (ICAs).
Earlier in March, a six-member SC bench had also conditionally allowed military courts to pronounce reserved verdicts in the cases. It had also modified its Dec 13 injunction, ordering that military courts could commence trials but they would not convict or acquit any suspect until the pendency of government-instituted ICAs.
Contradictory to today’s order, the bench on Monday had rejected the government’s request to allow military courts to pronounce verdicts in completed trials, with Justice Hilali noting it would imply the court’s acceptance of the military courts’ jurisdiction to try civilians.
In the same hearing, the bench had questioned the rationale behind handing over May 9 cases to military courts, asking whether anti-terrorism courts (ATCs) had issued speaking orders explaining their reasons before doing so.
Yesterday, questions about the legitimacy of civilians’ military trials in light of Article 8 were the highlight of the hearing, with Justice Mandokhail asking how the Pakistan Army Act (PAA) 1952 could be applied to someone who was not part of the army.
Today, Justice Aminuddin noted that the constitutional bench was only hearing the military trials case and adjourned all other cases.
Issuing today’s interim order, Justice Aminuddin said that the right to challenge the military courts’ decisions in high courts would remain suspended till the case in the apex court was decided upon.
“The appeal period in the high courts will begin after the final decision [by the SC],” the bench head observed.
During the hearing, Advocate Khawaja Haris appeared as the defence ministry’s lawyer. Additional Attorney General (AAG) Amir Rehman was present as the state counsel.
The hearing was adjourned until after the court’s winter break, which would end in January.
