ISLAMABAD: The Supreme Court on Monday asked the federal government for information about how many of the 103 civilians allegedly involved in the May 9 violence have either been awarded short jail terms by military courts, or waiting to be released under Section 382-B of the CrPC, or straight away acquitted.

“We will all be responsible if a person sentenced to six months by a military court is still in custody even after ten months,” bemoaned Justice Amin-ud-Din Khan. A six-judge SC bench, headed by Justice Amin-ud-Din Khan, took up a set of intra-court appeals (ICA) against the Oct 23 unanimous ruling that had declared civilians’ military trial illegal.

The suspects who were acquitted must be free by now, Justice Khan observed, adding that legal battle of the rest (decision on appeals) would continue. The main objective of the case is to free those who could be, he said.

Emphasising the need for releasing all such suspects, Justice Khan said the bench while deciding the case may observe that any appeal against the award of sentences will be subject to the outcome of the present case before the six-judge bench in case the jurisdiction of the military courts was determined.

Justice Amin urges release of those who served jail terms; Justice Hilali terms continued detention illegal; KP govt moves to withdraw appeal

In its final decision, the court may give time to the convicts to file appeals against their conviction before the appellant benches concerned, Justice Khan observed.

At this, Justice Musarrat Hilali observed that allowing the suspects to move appeals means accepting the jurisdiction of military court to try civilians, adding that continued incarceration of suspects, who should be acquitted, is an illegal act.

The court asked Attorney General for Pakistan (AGP) Mansoor Usman Awan to get instructions from relevant quarters and submit the details by Thursday when the case will be taken up again.

The AGP, however, explained that military courts had already completed recording of evidence and had to announce orders, but could not do so in view of the restraining order passed by the apex court earlier.

On Dec 13, 2023, the SC by a majority of five to one suspended the operation of its Oct 23 order that had nullified the trial of 103 civilians and issued a direction that military courts can commence the trial but they will not convict or acquit any suspect until the pendency of government-instituted ICAs.

The court asked Barrister Aitzaz Ahsan and Faisal Siddiqui to assist it as friends of court by giving suggestions on how to deal with suspects who were still in custody due to the pendency of appeals before it.

In the meanwhile, the AGP will contact the military authorities and then come up with details to be presented before the apex court on Thursday.

During the hearing, Justice Shahid Waheed wondered when a federal law was under discussion in the appeals and the federal government had filed appeals against the Oct 23 judgement, then how the provincial governments or private organisations could become aggrieved to file appeals. In its Oct 23 judgement, the SC had also struck down Section 2(1)d(i) and 2(1)(d)(ii) and Section 59(4) of the Pakistan Army Act (PAA) 1952.

KP govt’s move

Additional Advocate General Khyber Pakhtunkhwa Syed Kauser Ali Shah submitted a letter before the SC, written to him by Advocate General KP Shah Faisal Utmainkhel, expressing the provincial government’s intention to withdraw the appeal moved by then-caretaker government.

The SC, however, said that the plea could not be withdrawn based on a cabinet resolution and told the lawyer to file an official application in this regard.

Khwaja Ahmad Hosain, who represented ex-CJP Jawwad S. Khawaja, requested the court to urge the three-judge committee that determines fixation of cases to constitute a nine-member bench to hear the appeals.

Senior counsel Faisal Siddiqui objected to the engaging of private counsel Khawaja Haris Ahmed and Sikander Bashir, wondering whether the AGP had issued a certificate in this regard. When the AGP himself has filed appeals then why public money should be wasted on private lawyers, he asked.

Lawyer Salman Akram Raja contended that when there was no stay order on acquittals then why the accused whose cases did not make out should not be acquitted. He requested the SC to allow the verdicts to be announced for those suspects who could be acquitted.

Published in Dawn, March 26th, 2024