• Judges question why those booked under penal code, army act only convicted under the latter
• Govt lawyer says attack on state can’t be considered ‘political activism’
ISLAMABAD: The Supreme Court’s Constitutional Bench has raised questions over the future of individuals booked under both civil and military laws, but convicted only under the latter, for their involvement in violence on May 9.
The seven-judge bench, headed by Justice Aminud Din Khan, resumed the hearing on a set of intra-court appeals (ICAs) on Friday against the Oct 23, 2023, order nullifying the military trial of civilians involved in May 9 violence.
The question posed to Khawaja Haris Ahmed, representing the Defence Ministry, was about the status of those individuals charged with offences under the Pakistan Army Act (PAA), 1952 and Pakistan Penal Code (PPC), 1860.
Justice Jamal Mandokhail asked the counsel to explain whether the PPC charges against those convicted under the PAA were quashed, withdrawn or if the accused were acquitted of the civil charges.
The issue regarding civil offences arose during the hearing when Justice Musarrat Hilali pointed out that the military courts had convicted only those accused of attacking and vandalising army installations without addressing their role in instigating violence and terror within society — an offence under civilian laws.
Justice Muhammad Ali Mazhar observed that the counsel must provide a clear explanation, noting that the accused were booked under at least 18 offences, including one section of the PAA and two of the Official Secrets Act (OSA).
Justice Mazhar wondered if the trials had been bifurcated and whether the accused would face separate trials for civilian offences after serving their sentences under PAA.
Justice Mandokhail clarified that similar to Anti-Terrorism Courts when military courts assume jurisdiction, they also adjudicate civilian charges simultaneously when cases fall under their purview.
When Justice Hilali asked if the convicts could be tried for civil offences after completing their sentences awarded by the military court, Justice Khan explained that it would amount to double jeopardy.
Limits of political activity
During the hearing, the counsel referred to the Oct 2023 judgement where then Justice Afridi, in his dissenting note, stated that the federation was not fully heard on the provisions of PAA.
At this, Justice Mazhar inquired whether the attorney general (AGP) was issued a notice under Section 27(A) of the PPC to assist the court on the provisions of PAA.
When questioned, Additional Attorney General (AAG) Chaudhry Amir Rehman recalled that the five-judge bench that declared the military trial of civilians void had asked the AGP to focus his arguments on the incidents of May 9 and 10 instead of the provisions of the Army Act.
Justice Mandokhail recalled that the 21st Constitutional Amendment — under which military courts were set up to try civilians accused of terrorism — stated that the cases of political parties would not go to military courts.
The counsel replied that political activism has a limit, adding that an attack on the state’s properties was not political activity.
Justice Syed Hasan Azhar Rizvi said military and civil installations, including the corps commander’s residence in Lahore and Radio Pakistan building in Peshawar, were attacked in a coordinated manner.
In the past, people used to protest at the residences of governors or chief ministers, but on May 9, government installations were attacked for the first time, Justice Rizvi observed.
Justice Mandokhail also wondered why no military trial was conducted when the parliament house was attacked.
The hearing was adjourned till Monday.
Published in Dawn, January 18th, 2025
