SHUHADA FORUM, BALOCHISTAN through Patron in Chief, Nawabzada Jamal Raisani, Quetta Cantt. Versus Justice (R) JAWWAD S. KHAWAJA
These appeals before the Supreme Court of Pakistan arose regarding the constitutionality of subjecting civilians to court-martial trials under the Pakistan Army Act, 1952 ('PAA') for offences arising out of the occurrences of 9th May 2023. The core legal questions pertained to whether military courts could exercise jurisdiction over civilians without violating constitutional guarantees of fundamental rights, judicial independence, separation of powers, and international commitments. The Supreme Court held that the PAA is a disciplinary law applicable exclusively to members of the Armed Forces under Article 8(3)(a) of the Constitution and cannot exempt civilians from fundamental rights. Consequently, the court held that section 2(1)(d) of the PAA cannot be retained, and military courts, being executive bodies, lack constitutional jurisdiction to try civilians under Article 175, Article 245, and various fundamental rights. Setting aside all convictions and sentences awarded by courts martial to civilians, the Court directed the transfer of cases of under-trial prisoners to competent civilian courts and treated undergone sentences or acquittals as discharges under section 169 of the Code of Criminal Procedure.
- Whether civilians not otherwise subject to military discipline can be tried by courts martial under the Pakistan Army Act, 1952?
- Does clause (d) of subsection (1) of section 2 of the Pakistan Army Act, 1952 qualify for exemption from fundamental rights under Article 8(3)(a) of the Constitution?
- Is the trial of civilians by courts martial violative of the separation of judiciary from the executive under Article 175(3) and fundamental rights under Articles 9, 10, 10A, and 25 of the Constitution?
- What is the legal effect on sentences and custody of civilians previously convicted or tried by courts martial upon declaration of such trials as being without jurisdiction?
- The Pakistan Army Act, 1952
- Section 2(1)(d), Pakistan Army Act 1952
- Article 2A, Constitution of the Islamic Republic of Pakistan, 1973
- Article 8(3)(a), Constitution of the Islamic Republic of Pakistan, 1973
- Article 9, Constitution of the Islamic Republic of Pakistan, 1973
- Article 10, Constitution of the Islamic Republic of Pakistan, 1973
- Article 10A, Constitution of the Islamic Republic of Pakistan, 1973
- Article 19A, Constitution of the Islamic Republic of Pakistan, 1973
- Article 25, Constitution of the Islamic Republic of Pakistan, 1973
- Article 175, Constitution of the Islamic Republic of Pakistan, 1973
- Article 175(3), Constitution of the Islamic Republic of Pakistan, 1973
- Article 227(1), Constitution of the Islamic Republic of Pakistan, 1973
- Article 245, Constitution of the Islamic Republic of Pakistan, 1973
- Section 169, Code of Criminal Procedure 1898
ORDER
1. JAMAL KHAN MANDOKHAIL AND NAEEM AKHTER AFGHAN, JJ.--- For the reasons to be recorded later on, we dismiss these appeals on the following grounds:
(a) The Pakistan Army Act, 1952 ('PAA') is a disciplinary statute, relates to members of the Armed Forces, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline amongst them, as provided by clause (a) of sub-Article (3) of Article 8 of the Constitution of the
2. Islamic Republic of Pakistan, 1973 ('Constitution'), hence, does not offer fundamental rights to persons under the military discipline.
(b) To the contrary, 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.
(c) Article 175 of the Constitution provides the establishment and jurisdiction of courts. It requires that in order to fully secure the independence of judiciary, it must be separated from executive in all respects. The courts martial comprising of executive, being outside the scope of Article 175(3) of the Constitution cannot prosecute the civilians.
(d) The trial of civilians by courts martial offends the fundamental principle of independence of judiciary, fundamental rights of security of person, safeguard as to arrest and detention, fair trial and due process, right to information, equality of citizens and Injunctions of Islam, as guaranteed by Articles 2A, 9, 10, 10A, 19A, 25 and 227(1) of the Constitution, respectively.
(e) Denial of right of appeal to civilians against the conviction and sentence by courts martial before an independent and impartial forum is also violative of fundamental right of fair trial and due process.
(f) The trial of civilians by courts martial presided over by active military officers, is violative of the recognized covenants of the United Nations Human Rights Commission ('UNHRC') as well as the International Covenant on Civil and Political Rights, 1966 ('ICCPR') and treaties, to which Pakistan is a signatory.
(g) The trial of civilians by courts martial is in excess of the functions assigned to the Armed Forces by Article 245 of the Constitution.
2. The convictions and sentences awarded to civilians by the courts martial for the occurrence of 9th May, 2023, are declared to be without jurisdiction, hence, the same are set aside. They shall be dealt with as follows:
(i) The accused under custody shall be treated as under-trial prisoners. Their cases stand transferred to the concerned courts of competent jurisdiction for trial. Upon receipt whereof, the concerned courts should proceed with their trials expeditiously and decide the same at the earliest, in accordance with law.
(ii) The persons who have completed/undergone their sentences or have been acquitted of the charge by the courts martial or Forum of Appeal under the PAA, shall have the effect of their discharge under section 169 of the Code of Criminal Procedure ('Cr.P.C.').
3. Sd/-
4. Judge
5. Sd/-
6. Judge
7. MH/S-20/SC Appeals allowed.