ISLAMABAD: As Supreme Court took up on Monday challenges to a five-member bench’s ruling that declared military trials of civilians illegal, the scope of intra-court appeals came under scrutiny, with a judge questioning whether the ICAs should be treated as appeals or mere internal reviews of the earlier decision.

Justice Shahid Waheed — a member of the seven-judge SC bench that had taken up a set of 50 ICAs against the Oct 23, 2023 verdict that nullified the trial of civilians in military courts for their alleged involvement in the May 9 violence — referred to Justice Syed Mansoor Ali Shah’s judgement in the Supreme Court (Practice and Procedure) Act 2023 and pointed out that the apex court should first settle its powers while hearing the ICAs.

The seven-judge SC bench was headed by Justice Amin-ud-Din Khan.

Pointing towards Attorney General for Pakistan (AGP) Mansoor Usman Awan, Justice Waheed emphasised the need for determining the scope of ICAs, saying that being a sensitive matter, “we should decide first whether to treat these appeals review of earlier judgement or appeals, especially when one-fourth of the top court had spoken through the Oct 23, 2023 verdict by holding the trials of civilians by the military courts as illegal”.

The judge also pointed out the absence of a guideline or rule on how to deal with these appeals after the SC judgement in the practice and procedure act.

Apex court allows six more applications in matter regarding trials of civilians in military courts

In the judgement, Justice Mansoor Ali Shah had held that an ICA was not an appeal in the strict sense but an internal arrangement of the court for reviewing its own decisions.

When inquired by Justice Waheed if any approval was granted by the cabinet before the filing of ICAs, AGP Awan said no such endorsement was needed in the filing of such cases.

At this, Justice Muhammad Ali Mazhar, while pointing towards the AGP, said whe­ther he wanted a rule that a cabinet appr­oval was necessary every time before filing such appeals by the federal government.

Six more applications allowed

Meanwhile, the Supreme Court, in a five-to-two majority decision, granted six applications to intervene in the ICA against the Oct 23, 2023 judgement.

The applications were moved by senior counsel Hamid Khan on behalf of the Lahore Bar Association, Lahore High Cou­rt Bar Association, District Bar Lahore, etc.

The senior counsel contended that the bar councils feel that the Oct 23 judgement had extended the fundamental rights of the citizens and, therefore, they should come in support of the judgement under challenge.

Faisal Siddqiui, a senior counsel from Karachi, withdrew his application seeking live streaming of the present appeals provided the apex court decides to conduct day-to-day hearing.

At the outset, Sardar Latif Khosa, Sal­man Akram Raja, and Barrister Aitzaz Ahsan, representing families of the detained, expressed concern that for the past five weeks, the 85 detained persons had been denied meetings with their families. In some cases, when meetings were allowed, detainees were brought in shackles, hooded, and denied home-cooked food.

Salman Akram Raja said there was no justification of keeping these prisoners in the military custody. At this, Justice Jamal Khan Mandokhail said if it was true then it was regrettable since humanity comes first.

AGP Awan said this information has come as a surprise to him and assured the court that he will look into the matter and apprise the court of the latest situation. “It’s my understanding that family meetings are being arranged on every Thursday,” the AGP said.

The court directed the AGP to furnish the schedule of weekly meetings between the under-trial prisoners and their family members.

Analyst Hafeezullah Niazi regretted that his son Hasan Niazi has been under physical custody for 11 months, and since he did not enjoy any prisoner rights, the trial against him is still pending and no bail applications could be entertained by the courts.

Justice Mandokhail observed that a number of applications were hindering the early disposal of the appeals. Pointing towards senior counsel Shumail Butt, who was representing Shuhada Forum Balochistan, he asked why this organisation never challenged the torching of Ziarat Residency where the Quaid-i-Azam had stayed during his last days.

In its petition, the Shuhada Forum had contended that the trial of civilians under the Pakistan Army Act (PAA) 1952 was a violation of the Constitution, as well as Section 5 of the Supreme Court Practice and Procedure Act. The counsel said he will furnish the objectives of the organisation before the court.

The court then postponed further proceedings till July 11.

Published in Dawn, July 9th, 2024