Justice Hassan Azhar Rizvi wondered on Wednesday whether crimes committed during violent nationwide riots on May 9, 2023, were more serious than terrorist incidents as the Supreme Court’s Constitutional Bench heard a case on military trials of civilians arrested over the incident.

The case pertains to the military trials — and recent sentencing — of civilians for their role in attacks on army installations during the riots that followed ex-premier Imran Khan’s arrest on May 9, 2023.

On December 13 last year, the constitutional bench conditionally allowed military courts to pronounce reserved verdicts of 85 civilians who were still in custody for their alleged involvement in the riots. On Dec 21, military courts sentenced 25 civilians to prison terms ranging from two to 10 years for their involvement in violent attacks on military installations during the riots. A week later, another 60 civilians were handed jail terms ranging from two to 10 years for their involvement in the riots.

Justice Rizvi’s remarks came as the bench resumed hearing intra-court appeals (ICAs) challenging an October 23, 2023 ruling by a five-judge bench that had unanimously declared that trying the accused civilians in military courts violated the Constitution.

The seven-judge Constitutional Bench was headed by Justice Aminuddin Khan and also included Justices Afghan, Jamal Khan Mandokhail, Muhammad Ali Mazhar, Musarrat Hilal, Shahid Bilal Hassan and Rizvi. The bench has questioned in recent hearings why the accused were “specifically” tried in military courts instead of anti-terrorism courts, with Justice Mandokhail observing that “the executive cannot play the role of judiciary”.

During today’s hearing, Advocate Khawaja Haris appeared as the defence ministry’s lawyer and continued his arguments that while courts were mentioned in the Constitution under Article 175, military courts were not.

“Military courts are formed under a separate law which is recognised,” he said.

Justice Mandokhail remarked that the powers of the courts formed under Article 175 were extensive, while the jurisdiction of any court formed under a specific law was limited.

He said that as per the 21st Constitutional Amendment, military courts were created during times of war and amendments had to be made in the Constitution to try civilians.

“There was no need for any amendment for the trial,” Advocate Haris responded, adding that “additional crimes were included in the Army Act through the amendment.”

Justice Rizvi remarked that the Mehran base and Kamra base attacks were mentioned in the 21st Amendment.

“Where was the trial of those who attacked GHQ (General Headquarters)?” he asked. “Two Orion aircraft worth billions of rupees were destroyed [in the Mehran base attack]; is the crime of May 9 more serious than these incidents?”

Advocate Haris said that all perpetrators of the Mehran base attack were killed.

“So after they died was there no investigation as to who they were, where they came from and how they came? Was the file of the Mehran base attack closed after the terrorists were killed?” Justice Rizvi asked.

Advocate Haris replied saying an investigation must have been conducted. “The case of the GHQ attack happened in military courts and took place before the 21st Amendment.”

Justice Rizvi remarked that the amendments were made based on these attacks and asked: “What happened to the accused in the attack on Kamra base? When did they have a trial?”

Advocate Haris said he would inform the court after taking instructions and completed his arguments.

The additional attorney general said he would adopt the same arguments as Haris. The hearing was later adjourned till tomorrow.