FIRs against May 9 accused: SC asks govt to explain relevant sections of law

ISLAMABAD: The Supreme Court has asked the federation to inform under which sections the first information reports (FIRs) were registered against the 9th May accused, and which sections were later on added by the investigation to their cases.

A seven-member SC constitutional bench headed by Justice Aminuddin Khan, on Thursday, heard intra-court appeals (ICAs) against the apex court’s decision on the trial of civilians by the military courts.

Justice Muhammad Ali Mazhar asked the Ministry of Defence’s counsel that the Federation would have to inform under which sections the FIRs were registered against the 9th May accused, and which sections were later on added to their cases by the prosecution/investigation. Justice Syed Hasan Azhar Rizvi observed that might be after more evidence further sections were added [to 9th May accused].

Justice Naeem Akhtar Afghan questioned how the changes made in the Official Secrets Act, 1923, could apply to the 9th May incidents, adding whether these amendments would apply retrospectively?

He said they would also examine handing over of the 9th May accused to the military courts. He noted that the State has not passed any speaking order in this regard. Their (the accused) cases were under investigation before the magistrate, but their custody was handed over to the military. He inquired from the counsel would he concede there was no speaking order?

Khawaja Haris replied that the accused were handed over to the military authorities at various places. Justice Afghan observed that no accused had challenged the transfer of custody to the military.

Justice Mandokhel questioned whether these judgments would apply to the constitutional bench, which has been constituted after the 26th Amendment. Justice Mazhar remarked if the government has set up Federal Court then there would have been an issue, but as this bench is part of the Supreme Court of Pakistan then it can hear the instant petitions and SC judgments would

apply to it.

Khawaja Haris contended that the five-judge bench judgment did not consider the issue of maintainability. He argued that the judgment misconstrued that the accused in the FB Ali case were in service of Pakistan Army. He emphasised if that was the case then there was no need of their [FB Ali and others] trial under Article 2(1)(d) of the Army Act.

On October 23, 2023, a five-member SC bench, headed by Justice Ijaz ul Ahsan, unanimously, declared the trial of civilians in military courts null and void and ordered that the 103 accused in cases related to the violence on May 9 and 10, 2023, be tried under the ordinary criminal laws. It, by a majority of 4-1, declared that clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub clauses (i) and (ii)) and subsection (4) of Section 59 of the said Act ultra vires the Constitution and of no legal effect.

The bench noted that there is difference between the fundamental rights in 1962 and 1973 constitutions. Justice Mazhar said the due process of law has been exercised even before the insertion of Article 10A in the Constitution, the concept of fair trial has also been in every constitution. He questioned whether there is any comparative study what procedure adopted for the trial in the military court before the introduction of Article 10A in the constitution.

Khawaja Haris argued that in FB Ali, Shahida Zaheer Abbasi, Liaquat Hussain and the Rawalpindi District Bar Association cases there has been discussion about the due process of law and fair trial. In Shahid Zaheer Abbasi, the apex court upheld the provisions of fair trial in Army Act, he added.

Justice Mandokhel remarked when civilians are tried by the military courts then how their fundamental rights could be ignored? Justice Mussarat Hilali questioned why it was felt to insert Article 10A in the constitution when various provision in the constitution and the law catered due process and fair trial. Khawaja Haris replied that it was done only to emphasize.

Justice Afghan observed that in the original law (Army Act) only the serving officer could be tried, but through an amendment in 1967 the trial of retired officers was included in Army Act. He said if Section 2(1)(d) is struck down then all the cases of retired army officers before the military would end, and FB Ali will be acquitted, adding no cases of retired army officers could be tried before the military courts.

Justice Afghan also said that if the legislature specifically had written “retired officer” instead of “any person” then this issue had not emerged, but now it is deemed that the civilians also fall under this law. “We don’t know whether it was inadvertent or done consciously.”

Justice Amin asked the counsel to inform how many civilians, besides Kulbhushan Yadhav, were tried by the military courts. Khawaja Haris replied that all the judgments, which he cited in his arguments, say that civilians could be tried by the military courts. He said military courts have been recognised in Supreme Court’s various judgments.

The case was adjourned until Friday (Jan 17).

Copyright Business Recorder, 2025