ISLAMABAD: The Supreme Court questioned why specific persons, involved in 9th May incidents, were tried under the military courts contrary to the precedent.

A seven-judge constitutional bench headed by Justice Aminuddin Khan, on Thursday, heard intra-court appeals (ICAs) against the SC’s judgment that civilians cannot be tried by the military courts.

Justice Naeem Akhtar Afghan raised concerns about the government’s reasoning for prosecuting some civilians in military courts while others involved in the same May 9 events face trial in anti-terrorism courts.

He asked the Defence Ministry’s lawyer how many people were accused in the May 9 events. He observed that of the accused in the May 9 cases, 103 were tried in military courts, while the remainder are being prosecuted in anti-terrorism courts.

Justice Mussarat Hilali asked, “Where the decision was taken as to who would be tried in the military courts and who would not?” Justice Jamal Khan Mandokhail inquired from Khawaja Haris who initiated the process of taking someone under military custody. He, while referring to the difference in decisions between the military and anti-terrorism courts, asked whether “special evidence” was being presented in the military trials. He questioned why the civilians involved in the riots on May 9 were “specifically” tried under the military courts contrary to precedent.

Justice Hilali noted that no emergency had been declared when the accused were taken into military custody, questioning the legal basis for their trials under military law. “Were fundamental rights suspended at that time? If not, can civilians be tried in military courts under such circumstances?” she asked.

Justice Syed Hasan Azhar Rizvi observed that the country had faced terrorists attack in the past; however, terrorists involved were tried in ordinary courts. He said there were terrorist attacks on various installations including General Headquarters, and Karachi base. Similarly, “There was a case of conspiracy to hijack an army chief’s plane.”

He inquired from Khawaja Haris, who represented Ministry of Defence, to tell us where the hearing of these attacks were held? “That case (hijacking) was tried in an ordinary court, and you were the lawyer of one of the parties,” he added.

“Tell us, where [were the hearings for the] attacks held?” he asked, adding that if the terrorists in those attacks were tried in ordinary courts, “what did the people [involved in] May 9 to go to military courts?” Justice Rizvi remarked.

During the proceeding, Kulbhushan Jadhav, an Indian national, arrested in Balochistan in 2016, over charges of terrorism and spying for the Research and Analysis Wing intelligence agency, case was discussed.

Justice Mazhar said the five judges’ judgment voided Section 2(d) of Army Act. He questioned what would be the effect of declaring the whole provision void? The judge asked whether after the judgment the case of Kulbhushan Jadhav, an enemy of the country, could be tried in the military court. Khawaja Haris replied, “no”.

Justice Mazhar, on the other hand, asked for an FIR in each one of the cases. “The accused is being acquitted by the anti-terrorism court and then is being sentenced by the military court. Is any specific evidence being provided to the military courts?” Justice Mandokhail asked.

He urged the government to strengthen anti-terrorism courts (ATCs) and civilian justice mechanisms. “Why not empower civilian courts to handle such cases? Trials should be based on evidence and due process,” he remarked.

Justice Muhammad Ali Mazhar remarked that since the first information report (FIR) filed against the May 9 culprits was bundled together, “Where did the distinction come from for some to be tried in the ATC while others to be tried in the military courts?”

KhawajaHaris argued that the trials were constitutional and did not contravene Supreme Court’s rulings. He addressed questions about Article 233, which deals with suspending fundamental rights during emergencies, asserting it was irrelevant to the current military court cases.

Khawaja Haris maintained that the military trials were necessitated by the nature of the crimes, which involved attacks on sensitive military installations. However, Justice Mandokhail questioned why military courts were being preferred rather reforming the civilian prosecution system.

The bench also discussed the conditions of detainees, with Punjab’s Additional Advocate General presenting reports on their treatment. He claimed that detainees were provided outdoor time, access to a canteen, and home-supplied mattresses.

Justice Hilali warned against misrepresentations, stating, “If you provide inaccurate reports, we will summon the Jail Reforms Committee for independent verification.”

The hearing was adjourned until today (Friday).

Copyright Business Recorder, 2025