• Justice Naqvi questions invoking Section 302, wonders if any person was killed in May 9 riots
• Violence cost country Rs2.5bn, court told

ISLAMABAD: The Supreme Court on Wednesday provided another opportunity to Attorney General for Pakistan (AGP) Mansoor Usman Awan to seek fresh instructions from the government about the provision of appeal against the sentence to be awarded by military courts to those found guilty of May 9 violence and arson.

“Get instructions from the government about the right of appeal against the military courts’ trial of citizens if found guilty of May 9 events,” observed Chief Justice of Pakistan (CJP) Umar Ata Bandial. The CJP is heading a six-judge bench that has taken up a set of challenges to the trial of civilians by military courts.

Earlier, the court had sought details of individuals in the military custody and facilities being extended to them. In response, the government committed weekly visitation of family members to the detainees, and stated that no woman would be tried by military courts.

The observations came when the AGP said the government was willing to follow any suggestions to improve the process of trial by military courts if the SC issued directions to ensure provision of appeal against convictions and that the sentence should be awarded with reasons.

At this, Justice Yayha Afridi wondered why the government was asking the apex court for a legislation instead of bringing a law or a constitutional amendment by itself.

Justice Ayesha A. Malik wondered would the provision of mere appeal suffice when the element of due process — a constitutional guarantee — was missing, especially when ordinary citizens are entitled to due process at all stages.

The AGP also argued that maximum punishment under Section 7 of the Official Secrets Act was two years, but in one of the cases involving the incident at the Corps Commander House, Lahore, Section 302 of the CrPC had also been invoked.

At this, Justice Sayyed Mazahar Ali Akbar Naqvi wondered whether any person had been killed during that incident.

The AGP retorted that the court should inquire about invoking Section 302 from the advocate generals of Punjab and Khyber Pakhtunkhwa.

Justice Munib Akhtar emphasised that the Pakistan Army Act (PAA) has been designed for military personnel to be applied in the war period which could be disturbed if implemented to civilians.

He also wondered would it come under the legislative competence of parliament if right of appeal was provided to the court of law on convictions awarded by the court martial.

However, the CJP recalled that in specific cases the right of appeal was provided to high courts like in the case of Indian spy Kulbhushan Jadhav.

‘Grave in nature’

The CJP conceded that May 9 events were grave in nature since it was for the first time that military premises were attacked by the public and acknowledged that the attack on military installations was an attack on the state. Yet, he observed, the court had to consider any constitutional bar under the PAA that takes away the right of appeal before the high court, etc.

The petitioners are willing to face the trial but only concerned over the lack of due process in the military trial, the CJP reminded the AGP. The real question is about the fairness of the system of trial by military courts and the prejudice the civilians may suffer if court-martialled, he added.

Justice Bandial observed that 102 people were in the military’s custody and 18 or 20 locations had been attacked. Besides, he added, the kind of damage inflicted on military installations involves more serious offences under civilian laws than the military courts.

The AGP said that offences levelled against the suspects were not in the nature of civil offences rather triable under PAA. He emphasised that there was a distinction between the 1999 Sheikh Liaquat Hussain case and the 2015 District Bar Association case being cited repeatedly since in both cases offences of civilian nature were tried by military courts.

AGP Awan explained why he had requested on Tuesday for the full court to hear the case since the issue was first of its kind in which vires of Section 2(1)(d)(ii) had been challenged.

He produced volume II of his statement to present a pictorial narration of coordinated violence in different cantonments of the country. “Though we have faced a number of terrorism incidents, yet for the first time the populous ransacked and damaged civil and military installations, torched public properties and took away household articles etc on May 9,” he said.

Details of violence

In all, 62 incidents of violence were witnessed inflicting a loss of Rs2.5 billion on the country, of which Rs1.98bn loss was suffered by the army.

Acts of violence and arson took place from 3pm to 7pm across establishments belonging to the army and the air force, he said, adding that even the boundary walls of the Mianwali Airbase was demolished where a squadron of Mirage jets was stationed with huge quantity of fuel. Even the Radio Pakistan building in Peshawar was completely destroyed as was the Toll Plaza at Swat Motorway, he said.

Published in Dawn, July 20th, 2023