ISLAMABAD: The Constitutional Bench of Supreme Court on Thursday raised serious questions over the military trial of individuals accused of May 9 violence, making it abundantly clear that the decision to prefer military courts over ordinary ones had failed to convince it.

The seven-member bench wondered why the individuals tried by military courts had been treated differently from another group whose cases were heard by anti-terrorism courts (ATCs) for the same offence.

The anxiety among the bench members was amplified when Justice Hasan Azhar Rizvi raised concern whether the May 9 accused were more dangerous than the perpetrators of 2009 GHQ attack or 2011 PNS Mehran Naval headquarters assault in which even sophisticated surveillance aircraft were destroyed or those who had attempted to hijack then-army chief’s (Pervez Musharraf) plane while he was returning from Sri Lanka.

At this point, Justice Jamal Khan Mandokhail interjected. While referring to the plane hijacking conspiracy, he said it was just an allegation.

While recalling that in two of such cases military installations were also attacked and even people were martyred, Justice Rizvi questioned were those involved in these incidents ever tried by military courts.

These observations were made when the constitutional bench was hearing a set of intra-court appeals against the Oct 23, 2023 five-judge order that had nullified the trial of May 9 accused by military courts.

Justice Rizvi asked Defence Ministry counsel Khawaja Haris Ahmed — who faced a volley of questions — to provide any data about the events when military installations were attacked and the perpetrators were tried by military courts.

He reminded the lawyer that the hijacking case had even reached the Supreme Court.

‘Issue of jurisdiction’

Justice Musarrat Hilali clarified that the existence of military courts was not being questioned, rather the issue before the court is whether military courts had the jurisdiction to try civilians. She wondered if there was any classification to determine which case will go to ordinary courts and which to military courts.

Justice Hilali also asked to show any sample since FIRs against the convicts had been registered at ordinary police stations and reminded the lawyer that unless the Constitution was suspended, the trial of civilians cannot be conducted by military courts.

Justice Naeem Akhtar Afghan asked the counsel to add his query to the basket as well: how come the cases against 105 accused were tried in military courts and the rest in the ATC; and, on what basis had that distinction been made.

Justice Afghan also wondered whether any speaking orders were issued by the ATCs before handing over the accused to the military.

Justice Mandokhail asked how and by whom had it been decided that the cases would go to different forums. Some of the accused were acquitted by the ATCs but punished by the military courts, Justice Mandokhail noted and wondered whether some special evidence had been presented before the military courts.

Why prosecution and ATCs are not being strengthened so that the courts could decide independently on the basis of irrefutable evidence, Justice Mandokhail observed, adding that “we have complete respect for the military courts but courts should be established while remaining within the confines of the Constitution”.

He said the apex court had already held in the Mehram Ali case that no court could be established in violation of the Constitution.

Indian spy Kulbhushan Jadhav’s case also came up during the hearing when Justice Muhammad Ali Mazhar wondered about the impact of the SC’s judgement in which sections 2(1)d(i) and 2(1)(d)(ii) of the Pakistan Army Act had been struck down. He asked would the cases of the enemies of state like Jadhav be tried by the military court or not. How and on what principle the distinction to conduct the cases in different forums was made, asked Justice Mazhar.

The counsel replied that after setting aside these sections, even spies like Jadhav cannot be tried by the military courts.

Facilities for prisoners

Referring to the facilities being provided to the convicts in Lahore’s Kot Lakhpat Jail, Additional Advocate General (AAG) Punjab Waseem Mumtaz said they were served breakfast at 7:30am and then allowed to stroll around until 5pm. All the inmates were kept in the same barracks and even permitted to bring mattresses from their homes. They could even buy coffee from the jail’s coffee shop.

At this senior counsel Faisal Siddiqi said they were claiming as if homely environment had been provided to the prisoners.

Justice Hilali reminded that the SC had already constituted a jail reforms committee which could be asked to visit the prison and confirm the facilities being provided to the inmates.

The AAG said he had been an officer of the court for 30 years and never shared any information without first checking its authenticity.

Justice Hilali said she had also been AAG, in Khyber Pakhtunkhwa, and had the understanding of everything.

Justice Amin-ud-Din Khan, who headed the bench, said the court was concerned about the security of everyone, adding that it would never issue any order that may compromise the security of anybody.

He also stated that the court will not go beyond its scope.

The court ordered that if any one has any complaint about the facilities being provided to these convicts then the district and sessions judge concerned could be approached in this regard. The order also applies if any permission was denied to sign the power of attorney by the inmates, the court said.

Published in Dawn, January 10th, 2025