April 25, 2024
ISLAMABAD – A six-member bench of the Supreme Court on Wednesday decided that a larger bench should hear a set of intra-court appeals (ICAs) against the court’s Oct 23 unanimous ruling that had nullified the military trials of civilians involved in the May 9 riots, and referred the matter to bench reconstitution committee.
The development came as the existing 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 — resumed hearing the appeals.
The case pertains 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 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.
However, on December 13, 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 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.
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.
In March, 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”.
In a subsequent hearing, the SC had asked the federal government for information about suspects who had been awarded short jail terms or were awaiting release or acquitted.
During the same hearing, KP Additional Advocate General Syed Kauser Ali Shah had submitted a letter expressing the provincial government’s intention to withdraw the appeal against the Oct 23 ruling.
On March 27, the SC had conditionally allowed military courts to pronounce reserved verdicts in the cases. It had also modified its Dec 13 injunction, ordering that military courts can commence trials but they will not convict or acquit any suspect until the pendency of government-instituted ICAs.
Subsequently, on April 8, Attorney General for Pakistan (AGP) Mansoor Usman Awan had furnished a list of 20 suspects who had been released so that they could celebrate Eidul Fitr with their families, after they served a major part of their sentence while the remaining period of their punishment was remitted by Chief of the Army Staff (COAS) Gen Asim Munir.
Among the 20 individuals, four belonged to KP while all other 16 hailed from Punjab. They were released in KP and Punjab on April 7 and 6, respectively.
In the hearing today, AGP Awan and ex-CJP Khawaja’s lawyer Khwaja Ahmed Husain appeared before the court. Senior counsel Barrister Aitzaz Ahsan, one of the petitioners challenging the trials, was also present.
Today’s hearing
At the outset of the hearing, AGP Awan informed the apex court that 20 suspects were released before Eidul Fitr and had returned to their homes.
He recalled that the details about those released had been submitted to the court through an application.
Justice Mazhar then asked the AGP, “Is there no case against the released suspects now?”
Here, Ahsan said that the suspects had been “sent home after turning them into convicted persons”.
The senior counsel claimed that a youth was “convicted without trial and was now in hiding”.
“Whatever has happened, has taken place in a very haphazard manner,” Ahsan lamented.
Justice Aminuddin asked if the youth Ahsan was referring to was included in the list of the released suspects, to which the counsel replied in the affirmative.
The court then made the AGP’s statements part of the case record.
At this point, ex-CJP Khawaja’s lawyer objected to the constitution of the bench.
The counsel requested the apex court that a nine-member bench hear the ICAs and they be referred to the three-judge committee constituted under the Practice and Procedures Act 2023 for bench reconstitution.
The SC then sought copies of the verdicts issued so far by the military courts. Ahsan and other petitioners’ lawyers requested the court to include the verdicts’ copies of the 20 released individuals in the case record.
At this, Justice Waheed said, “Let us first find out what procedure was followed in the trials.”
Subsequently, the appeals were referred to the SC committee for a larger bench’s formation.