ISLAMABAD: The Constitutional Bench of the Supreme Court by majority of 5-2 set aside the SC judgment and restored Section 2 (1) (d) and Section 59 (4) of Pakistan Army Act, 1952.
It referred the matter to the Government/ Parliament for considering and making necessary amendments/ legislation in the Army Act, and allied Rules for providing an independent right of appeal in the High Court, against the conviction awarded to the persons by the Court Martial/ Military Courts, within a period of 45 days.
A seven-judge Constitutional Bench, headed by Justice Aminuddin Khan, and comprising Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan on Wednesday delivered short order on intra-court appeals (ICAs).
Two members of the Constitutional Bench, namely, Justice Mandokhail and Justice Naeem, disagreed with the majority judgment, and set aside the convictions and sentences awarded to civilians by the courts martial for 9th May 2023, incidents, and declared them to be without jurisdiction.
The caretaker federal government, Defence Ministry, Ministry of Interior, and the interim governments of the Punjab, Khyber Pakhtunkhwa and Balochistan had challenged the 23rd October 2023 SC verdict. The Sindh interim government had also filed the appeal but later on withdrew it. The PTI which formed the government in KP, as a result of general elections February 8, 2024, had also withdrawn the ICA in November, 2024.
A five-member larger bench, headed by Justice Ijazul Ahsan and comprised Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A Malik, by majority of 4-1 on 23-10-23 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 are ultra vires the Constitution and of no legal effect. It also emphasised that the cases of the suspects involved in the vandalism would proceed before criminal courts.
The short order of the Constitutional Bench stated that Section 2 (1) (d) and Section 59 (4) could not be declared ultra vires on the anvil or bedrock of sub-article 5 of Article 8 of the Constitution.
The order said; “We, in unison, sensitise the need for legislative changes, which will also be compliant to the requirements laid down under the International Covenant on Civil and Political Rights (ICCPR), for maintaining and preserving the constitutional and societal norms in the existing legal framework.” It therefore, referred the matter to the Government/ Parliament for considering and making necessary amendments/ legislation in the Pakistan Army Act, 1952, and allied Rules within a period of 45 days in order to provide an independent right of appeal in the High Court against the conviction awarded to the persons by the Court Martial/ Military Courts under sub-clauses (i) and (ii) of Clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952, read with sub-section (4) of Section 59 of the Pakistan Army Act, 1952.
It also said that the limitation period for filing an appeal by the convicts against their conviction before the High Courts shall be reckoned and applied from the date of notifying the amendments under the Pakistan Army Act, 1952, and their conviction shall be subject to the final outcome/decision in appeal by the High Court.
The order clarified that the individual cases/ writ petitions, if pending or filed in the High Courts for challenging the vires of orders passed by the Anti-Terrorism Courts, allowing the transfer of case/ custody of any accused to the Military Court for trial, shall be decided by such Courts on its own merits.
The SC Office is directed to transmit the copy of this Short Order to the Attorney General, secretary general National Assembly, secretary Ministry of Law and Justice, secretary Ministry of Defence, and secretary Law and Justice Commission, Government of Pakistan, for ensuring compliance. Justice Mandokahil and Justice Naeem in their dissent note stated that clause (d) added to subsection (1) of section 2 of the PAA relates to persons not otherwise subject to the PAA (‘Civilians’). It does not relate to members of the Armed Forces, nor serves the aforesaid purpose, as provided by sub-clause (a) of sub-Article (3) of Article 8 of the Constitution, as such, it does not qualify for exemption from fundamental rights, hence, cannot be retained as part of the PAA.
Copyright Business Recorder, 2025
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