SC refers matter of military courts to body for larger bench

ISLAMABAD  -  The Supreme Court bench hearing Intra-Court Appeals against its own judgment on military courts Wednesday referred the matter to the Committee for constitution of a larger bench on the issue.

As a result of the Supreme Court (Practice and Procedure) Act, 2023, a three-member committee, comprising the Chief Justice of Pakistan and the two senior-most judges of the apex court decides about the formation of benches and fixation of cases before them. Earlier, the chief justice was the sole decision-making entity.

A six-member bench, headed by Justice Aminuddin Khan and comprising Justice Muhammad Ali Mazhar, Justice Syed Azhar Hasan Rizvi, Justice Shahid Waheed, Justice Musarrat Hilali and Justice Irfan Saadat Khan, conducted hearing of intra-court appeals (ICAs) against the SC 23rd October 2023 verdict. The bench asked the Attorney General for Pakistan (AGP) to file the records of military court decisions regarding the conviction of 20 individuals, who were released before Eidul Fitr. AGP Mansoor Usman Awan earlier, onset of the hearing, informed that 20 persons have been released from the military custody after giving them the benefit of remission. He also told that the military courts’ judgments that have been passed are subject to the final outcome on the appeals.

Justice Waheed said that the military court orders be placed before the bench so that they know what procedure was adopted. Whether all the accused were allowed to engage the private counsels. Aitzaz Ahsan submitted that as their information only on accused was allowed to hire the service of private counsel as his father is lawyer. Earlier, advocate Khawaja Ahmed Hassan, appearing on behalf of ex-CJP Jawad S Khawaja, contended that in the light of Justice Yahya Afridi and Justice Syed Mansoor Ali Shah’s notes the matter be sent back to the Committee and a 9-member bench be formed for hearing of ICAs. He argued that in view of the present circumstances it would lend the credibility to the court, if the larger bench is constituted and decide the issue once for all that ‘can the civilians be court martialled’.

A five-member larger bench, headed by Justice Ijaz ul Ahsan and comprised Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A Malik on 23-10-23 declared that military trials of the (103) civilians for their alleged role in attacks on army installations during the riots that followed ex-premier Imran Khan’s arrest on May 9 unconstitutional, illegal and of no legal effect. However, Justice Yahya disagreed with the majority i.e. Justice Ijaz, Justice Munib, Justice Mazahar and Justice Ayesha, who held that the sub clauses of Section 2(1)(d) of the Act are ultra vires the constitution.

Justice Mazhar told Kh Ahmed that if you would rely on the observation of Justice Yahya then it means that the SC judgment was wrong because he said that 9-member bench should hear the petitions against the trial of civilians by military courts. He said Justice Yahya on this point did not recuse from the bench, adding in fact Justice Yahya remained with the 5-judge bench till its final hearing. Justice Musarrat observed that the present bench is of 6-judges and if split decisions come of 3, 3 then there will be problem. Justice Mazhar said the judgment on military courts case will be of this bench. Justice Amin after hearing the lawyers’ arguments referred the matter to the Committee for constitution of larger bench.

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