ISLAMABAD: The constitutional bench of the Supreme Court on Thursday ordered the Ministry of Defence to furnish complete data on civilians tried in military courts, barring the case of Indian spy commander Kulbhushan Sudhir Jadhav.

The instructions were issued by Justice Amin-ud-Din Khan while pointing towards the ministry’s counsel Khawaja Haris Ahmed in an apparent move to determine whether procedural justice was not sacrificed at the altar of expediency.

The bench had taken up a set of intra-court appeals (ICAs) against the Oct 23, 2023, order of nullifying the trial of civilians by military courts involved in the May 9 violence.

During the hearing, Justice Naeem Akhtar Afghan underscored the need for clarity regarding the apparent lacuna in the Pakistan Army Act 1952 (PAA), which does not explicitly define the term ‘any person’.

Justice Afghan points to ‘apparent lacuna’ in Army Act over definition of ‘any person’

Justice Afghan suggested that this omission, whether intentional or accidental, has led to the current proceedings on the trial of civilians by military courts.

He noted that while PAA originally focused on officers and personnel of the armed forces, amendments in 1967 introduced Sections 2(1)(d)(i) and (ii), which expanded the scope to include retired army officers under the military trial jurisdiction. Now the constitutional bench is tasked with addressing the cases related to individuals accused in the May 9 violence, he said.

Justice Afghan highlighted that if the bench upholds the striking down of these sections by the Oct 23 judgement, then retired army officers would no longer face military trials but would instead be tried in anti-terrorism courts (ATCs). This would also retroactively impact cases like that of F.B. Ali, who was convicted by a military court in 1975, potentially leading to his acquittal.

Justice Afghan asked the counsel whether he would concede that the ATC had not issued a speaking order while transferring the custody of May 9 violence accused to military courts.

Justice Muhammad Ali Mazhar asked the counsel to show whether any sections had been added through supplementary FIRs during the investigation. Justice Jamal Khan Mandokhail inquired whether the charges added against the accused were introduced after the passage of the 26th amendment.

Justice Mazhar observed that constitutional bench was equivalent to regular benches of the Supreme Court, adding that the situation would have been different if a constitutional court had been established under the amendment.

The counsel also contended that the application of Article 10A was not relevant in all the previous judgements like the Shahida Zaheer Abbasi, Sheikh Liaquat Hussain, Rawalpindi Bar Association and Said Zaman cases though these had considered the requirement of fair trial.

Justice Mazhar observed that the requirements of Article 10A will also apply in the military trial of civilians.

The counsel argued that if Sections 2(1)(d)(i) and (ii) of the Army Act were upheld, then all petitions challenging these trials will become inadmissible also emphasising that military courts followed complete procedures in conducting trials. Evidence is presented and decisions are made based on these testimonies, he added.

At this, Justice Syed Hasan Azhar Rizvi repeated earlier directions by asking where was the record of these trials, adding that the court needs to examine how decisions were made based on the evidence.

The counsel said he would present the trial record before the court.

Published in Dawn, January 17th, 2025