Majority Short Order dated 07.05.2025 in Intra Court Appeals in the Military Trial cases under Pakistan Army Act, 1952 Short Order The aforesaid Intra Court Appeals (ICA) have been brought under Section 5 of the Supreme Court (Practice and Procedure) Act, 2023 to challenge the judgment dated 23.10.2023 passed by the learned Bench of this Court in Constitution Petition Nos.24, 25, 26, 27, 28 & 30 of 2023, filed under Article 184 (3) of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), whereby the Court, by majority (4 to 1), declared that clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub clauses (i) & (ii)) and subsection (4) of Section 59 of the said Act are ultra vires the Constitution and of no legal effect. It was further declared that the trials of civilians/accused (around 103 persons) and all other persons who are now, or may at any time be, similarly placed in relation to the events arising from and out of the 9th and 10th May, 2023, shall be tried by Criminal Courts of competent jurisdiction established under the ordinary and or special law of the land. However, Mr. Justice Yahya Afridi (present CJP) recorded his dissent to the majority judgment and abstained from declaring clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub clauses (i) & (ii)) and subsection (4) of Section 59 of the said Act, ultra vires the Constitution. On the other hand, he concurred and joined with the other members of the Bench that the accused persons, in relation to the events arising from and out of 9th and 10th May, 2023 shall be tried by Criminal Courts of competent jurisdiction established under the ordinary and/or special laws.
2. After providing extensive opportunity of hearing to all concerned and for reasons to be recorded later, subject to augmentation and explication in detail, the aforesaid ICA(s) are allowed by majority of 5 (comprising J. Amin-ud-Din Khan, J. Muhammad Ali Mazhar, J. Syed Hasan Azhar Rizvi, J. Musarrat Hilali, and J. Shahid Bilal Hassan) in the following terms: i. The impugned judgment is set aside and as a consequence thereof, sub-clauses (i) & (ii) of Clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 and subsection (4) of Section 59 of the Pakistan Army Act, 1952 are restored. With due deference to the impugned judgment, such provisions in our view could not be declared ultra vires on the anvil or bedrock of sub-article 5 of Article 8 of the Constitution which only provides that the rights conferred by the said Chapter (Fundamental Rights) shall not be suspended except as expressly provided by the Constitution, thus it does not control or preponderate upon the rigors of sub-article 3 of the said Article. There was, in fact, no question with regard to the suspension of any fundamental right involved within the sphere of influence or realm of Article 233 of the Constitution. ii. According to statistics shared by the learned AGP during the course of his arguments, 39 military installations, Army works/establishments at various places (23 in Punjab, 08 in KPK, 07 in Sindh and 01 in Baluchistan) including GHQ, Core Commander House, Lahore (which is also a camp office), Mianwali Air Base, and ISI Offices/set up in Sargodha, Faisalabad, and Rawalpindi were targeted/attacked on 09.05.2023. He further argued that all attacks were made by design and occurred on one and the same day, within a span of 4 to 6 hours, across the country. According to him, these incidents left an indelible mark and represented the darkest moments in the nation's history. As a result of these events, several First Information Reports (FIRs) were lodged at various Police Stations. He further argued that on account of dereliction of duty, stern disciplinary actions were also taken against several army officials. Additionally, the attack on the Core Commander House, Lahore, rendered the command dysfunctional for at least 4 to 5 hours, creating a highly dangerous situation. All fundamental rights enshrined and envisaged under the Constitution are subject to reasonable restrictions imposed by the law. Peaceful assembly, association, or public demonstration/protest within the bounds and precincts of reasonable restrictions imposed by the law is not prohibited but without violating or breaking the law, or taking the law in one's hands. iii. The learned counsel representing the respondents never refuted or denied the factum of such incidents but they candidly and forthrightly argued, from beginning to end, that though the accused/convicts have committed offences, they should be tried by Anti-Terrorism Courts and not through Court Martial or by Military Courts, as this violates the right to a fair trial as envisioned under Article 10-A of the Constitution, and under sub-article (3) of Article 175 of the Constitution, Military Courts cannot exercise judicial functions in the cases of civilians (the argument with regard to the applicability of sub-article (3) of Article 175 of the Constitution was also raised in the original proceedings but not approved or accepted in the majority impugned judgment). Whereas, the learned counsel for the appellants maintained that due to the striking down of the law in question, no action can be taken even against the hardcore criminals and terrorists involved in the attacks on army installations and/or against the martyrdom of innocent civilians and personnel of the armed forces and even in the present situation, no action can be taken in the national security and interest against the persons accused of espionage or spies of enemy countries for the offences mentioned in sub-clause (ii) of clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952. iv. No doubt, all such miscreants, lawbreakers, and perpetrators of such incidents are liable to be punished on proving their guilt, subject to right of appeal against their conviction. An independent right of appeal before an independent forum is also a basic limb of the doctrine of due process and the right to a fair trial, as enshrined and envisioned under Article 10-A of the Constitution.
Various provisions were vigorously highlighted by the learned counsel for the appellants to demonstrate that under the Pakistan Army Act, 1952 ("Army Act"), and the Rules framed thereunder, the right to a fair trial and due process is fully protected and safeguarded and the process of trial under the Army Act is compliant with the recognized principles of criminal justice as held in the cases of Brig. (Retd.) F. B. Ali (PLD 1975 SC 506), Shahida Zahir Abbasi (PLD 1996 SC 632), and the judgment rendered in the case of District Bar Rawalpindi (PLD 2015 SC 401). It was further averred that clause 2 (d) was inserted into the Army Act vide Section 2 of the Defence Services Laws Amendment Ordinance, 1967, which is protected under Article 268 of the Constitution. The learned AGP also asserted that the right to a fair trial, as enshrined under Article 10-A of the Constitution, and due process of law, was available to all such accused persons of the 9th and 10th May incidents, despite the exactitudes of Article 8 (3) of the Constitution. v. In the case of Shahida Zahir Abbasi (supra), it was held that "the rules of procedure applicable for trial of a person in a criminal case before a Military Court do not violate any accepted judicial principle governing trial of an accused person (...) the procedure prescribed for trial before Military Courts is in no way contrary to the concept of a fair trial in a criminal case". Likewise, the judgment in plurality rendered in the District Bar Association case (supra) held with reference to Article 8 of the Constitution that the "Court Martial are constituted and established under the Pakistan Army Act, 1952, and jurisdiction thereupon is also conferred by the said Act. Their existence and validity is acknowledged and accepted by the Constitution in so far as they deal with the members of the Armed Forces and other persons subject to the said Act. This has not been disputed before us". In the same case, the plurality judgment also refers to the case of Col. (R) Muhammad Akram v.
Federation of Pakistan through Secretary Ministry of Defence, Rawalpindi and another (PLD 2009 FSC 36), where the "provisions of the Pakistan Army Act were scrutinized by the Federal Shariat Court (...) and generally passed muster". vi. In our view, the provisions merely accentuating the right to a fair trial and due process in any statute and its actual application and proper implementation during the trial are two distinct features and situations. If an independent right of appeal is provided in the High Court for challenging the original order or internal departmental appellate order of conviction, then obviously, the High Court in exercise of its appellate jurisdiction as conferred under the provisions of the Code of Criminal Procedure, 1898, may examine whether an equal and fair opportunity to defend the charges was afforded to the convict, whether sufficient evidence was available to substantiate the charges, and whether proper procedure in the trial was followed in letter and spirit. vii. It is expansively evident from the impugned judgment, including the additional note, that during the original proceedings, the learned AGP, time and again, requested for time to seek instructions from the government on whether an independent right of appeal may be provided to the persons not otherwise subject to the Army Act, who are accused of the offences of (i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or
(ii) having committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923 as provided under clause (d) of Section 2 (1) of Army Act, and even in the concluding session on 5th May, 2025, the learned AGP reiterated that if this Constitutional Bench refers the matter to the Government/Parliament to amend the law and create a window of an independent right of appeal over and above the provision of appeal already provided under Section 133-B of the Pakistan Army Act, 1952, that will be respected and considered seriously. In support of this contention, he also cited the judgment of this Court rendered in the case of Jurist Foundation versus Federal Government (PLD 2020 SC 48). viii. While restoring the provisions of Army Act, that were struck down by means of the impugned judgment in the original proceedings before this Court, we, in unison, sensitize the need of 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. Therefore, the matter is referred 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) & (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. ix. Subject to clause (viii) of this Short Order, 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. x. All pending Civil Misc. Applications are also disposed of accordingly. xi. It is 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. xii. Office is directed to transmit the copy of this Short Order to the learned Attorney General, Secretary General National Assembly, Secretary Ministry of Law & Justice, Secretary Ministry of Defence, and Secretary Law & Justice Commission, Government of Pakistan, for ensuring compliance.
Order of the Court By majority of 5 (comprising Justice Amin-ud-Din Khan, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, and Justice Shahid Bilal Hassan), the Intra Court Appeal No.5/2023 and other connected appeals are allowed and the impugned judgment, dated 23.10.2023, rendered by the learned Bench of this Court in Constitution Petition Nos.24, 25, 26, 27, 28 & 30 of 2023 is set aside. Whereas, Justice Jamal Khan Mandokhail and Justice Naeem Akhter Afghan dismissed the aforesaid Intra Court Appeals.
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 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.').
Order dated 30-May-2025 Jamal Khan Mandokhail J. We respectfully do not agree with the findings of the majority judgment of our learned colleagues, Amin-ud-Din Khan, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, and Shahid Bilal Hassan, JJ allowing the above titled Intra Court Appeals.
Following are the questions for determination of these matters:
(i) Whether clause (d) of subsection (1) of section 2 of the Pakistan Army Act, 1952 ('PAA') serve the purpose of clause (a) of sub-Article (3) of Article 8 of the Constitution?
(ii) Whether persons not otherwise subject to PAA, accused of offences under clause (d) of subsection (1) of section 2 of the PAA can be tried by the courts martial in the context of the Constitution of the Islamic Republic of Pakistan, 1973 ('Constitution')?
Initially, there was no statute to govern the British Armed Forces. The British Parliament for the first time, through the Mutiny Act of 1689 (military law) made the British Armed Forces under control and governance of the Government. The Act of 1689 aimed to prevent mutiny and treason within the British Armed Forces. It was a collection of substantive and procedural rules governing the service of the Armed Forces and ensuring the proper discharge of their duties or the maintenance of the discipline amongst them. It provided a Military Justice System ('MJS'), designed to foster order, moral and the discipline within the military. The Black's Law Dictionary defines military law and military justice as under: "Military Law: the branch of public law governing the military discipline and other rules regarding service of the armed forces. It is exercised both in peace time and in war, is recognized by civil courts and includes rules far broader than punishment of offenders. ___ Also termed military justice.
Military Justice "A structure of punitive measures designed to foster order, moral and discipline within the military".
Indian Army Act, 1911:
2. The pre-partition Indian army was governed by the Indian Army Act, 1911[1] ('Act of 1911'), a disciplinary code replacing the previous legal framework, with more comprehensive and modern set of regulations for the administration of the Indian Army. It related to the rights and obligations of soldiers and for maintenance of discipline amongst them. Under the Act of 1911, Courts-martial were convened, invested with limited jurisdiction of prosecuting members of the Indian Army, for violation or breaches of the military discipline and the offences that had some connection with their military service.
Reasonable Classification:
3. Clause (a) of sub-Article (3) of Article 8 of the Constitution states that the provisions of Article 8 of the Constitution shall not apply to "any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them". The language that, "any law relating to members of the Armed Forces, or of the police or such other forces as are charged with the maintenance of public order", used in clause (a), refers to a statute that relates and applies to a specific class or group of citizens, i.e., members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, and no more. Whereas, the phrase, "for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline amongst them", used in the said sub-Article aims to achieve a defined objective or goal, i.e., ensuring the proper discharge of duties of such Forces or maintaining the discipline amongst them. The Constitution itself creates a reasonable classification, based on "intelligible differentia", and refers to a special law having rational relation to the object sought through the said clause. The question that what should be the basis or criteria for the classification, has been answered by this Court in the case of A.I. Sherwani[2], as follows:
26. From the above cited cases the following principles of law are deducible:
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25:-
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based--
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.
A "reasonable classification" means forming a particular group of individuals with common characteristics on the basis of valid reasons, for the purpose of enacting law, that relates to specific context, individuals and purpose. Reliance is placed on the case of Mushahid Shah[3].
Clause (a) of sub-Article (3) of Article 8 of the Constitution allows the legislature to enact a law relating to members of the Armed Forces, a group of citizens, having common characteristics, to which rest of the provisions of Article 8 of the Constitution do not apply. The "differentia" in the context of the Armed Forces is justifiable and serve a rational purpose of ensuring the proper discharge of duties of the Armed Forces or maintaining the discipline amongst them, which is necessary for a disciplined force.
The Pakistan Army Act 1952:
4. After partition of the Sub-continent, the Pakistan Army continued to be governed by the Act of 1911. Subsequently, it was replaced by the PAA in the year 1952, with certain amendments, adopting the basic structure of the Act of 1911. It is a special law, restricted to members of the Armed Forces, relates to specific object and purpose. It contains substantive and procedural provisions that govern the functions and affairs of the Pakistan Army, by officers in military service and provides a mechanism to grant commission. The Act outlines the duties, responsibilities, and determines terms and conditions of service of members of the Armed Forces, aims to ensure the proper discharge of their duties or to maintain the discipline amongst them. All disorders and neglects by members of the Armed Forces and persons under the military discipline, to the prejudice of good order, having some impact on military discipline and bringing discredit upon the Armed Forces are crimes under the Statute. It defines service offences and prescribes punishment for its violators.
Besides, under section 59 of the PAA, any person subject to this Act, who at any place in or beyond Pakistan commits any "civil offence" shall be deemed to be guilty of an offence against this Act.
Thus, for a person to be subject to the PAA, his "status" as a member of the Armed Forces or under the military code and discipline, is a condition precedent. Therefore, persons upon joining the military service permanently or for a specific period of time either on contract or otherwise, gain the "status" of members of the Armed Forces. They remain so until duly retired, released, discharged, removed or dismissed from the service. They are of a particular disciplined group of people, who share a common characteristic. Under subsection (1) of section 2 of the PAA, the following persons are subject to this Act:
(a) officers, junior commissioned officers and warrant officers of the Pakistan Army;
(b) persons enrolled under the Indian Army Act, 1911, before the date notified in pursuance of subsection (2) of section 1, and serving with the Pakistan Army immediately before the date, and persons enrolled under this Act;
(bb) persons subject to the Pakistan Navy Ordinance, 1961, or the Pakistan Air Force Act, 1953, when seconded for service with the Pakistan Army, to such extent and subject to such regulations as the Federal Government] may direct;
(c) persons not otherwise subject to this Act, who, on active service, in camp, on the march, or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany any portion of the Pakistan Army."
Military Justice System under the PAA:
5. The PAA being a special law, applies to members of the Armed Forces, provides for an MJS, which is of its own kind. It focuses upon violation of the provisions of the PAA and breach of the rules framed thereunder. Under the MJS, courts martial are convened to enforce military laws, aims to determine the guilt of members of the Armed Forces and inflict punishment upon violators of military offences, ensuring the proper discharge of their duties or the maintenance of good order and discipline amongst them. Any offence punishable under any general law, enforced in Pakistan that applies to every citizen, triable by ordinary criminal courts, has been described as "Civil Offence", by section 59 of the Act, and extends the jurisdiction of courts martial to try members of the Armed Forces for the civil offences committed by them. If any civil offence is committed by a member of the Armed Forces, the ordinary courts and courts martial each have concurrent jurisdiction to try such official for the civil offence. Section 94 of the PAA grants a discretion to the "prescribed officer", determined by the Act, to choose between two trial forums. The authority of the "prescribed officer" is limited, based on the criteria that the civil offence committed by a member of the Armed Forces has nexus with his code of conduct, i.e., the discharge of his duty or the maintenance of his discipline. If the "prescribed officer" decides that the civil offence committed by a member of the Armed Forces shall be instituted before the courts martial, he may request the Court for detention of the accused person in military custody. It is for the court to decide whether to grant the permission for transfer of the case or otherwise, depending upon the facts and circumstances of each case. Such order of the court is subject to judicial review by a higher forum.
If the Court declines the request of the "prescribed officer", the civil offence committed by a member of the Armed Forces shall be tried by the ordinary criminal court of general jurisdiction.
The test for the courts' martial jurisdiction:
6. The MJS provides for the unique practice and procedure of the courts martial, distinct from the normal criminal procedure, applicable to ordinary criminal courts. The decision of the courts martial is appealable before the Chief of the Army Staff or his nominee. The jurisdiction granted to the courts martial is restricted to prosecute persons connected to or having some relation with the military service. It, therefore, depends solely on the accused's "status" as a member of the Armed Forces. The courts martial are administered judicially, not as a part of the judicature erected under Article 175 of the Constitution, but as part of the organization of the Armed Forces itself. The jurisdiction of courts martial trying military personnel for service offences and civil offences is different from judicial power exercised by ordinary courts for the general offences against the State. In the case of Private R v Crown[4], the Australian Apex Court determined the jurisdiction of service tribunals meant to serve the purpose of holding members of Australian Defence Force ('ADF') to the observance of the army law. It was held as under:
62. As has been seen, the jurisdiction of service tribunals serves the special purpose of maintaining morale and discipline within the ADF. It is this purpose that validates the Act; and that purpose is served by holding members of the ADF to the observance of the law of the land. The validating purpose of the Act means that the jurisdiction of service tribunals does not trench upon the jurisdiction of State courts. In McWaters v Day the Court, in a unanimous judgment, said that the disciplinary code established by the Act was "cumulative Act upon and not exclusive of the ordinary criminal law". Their Honours went on to say of the Act that it did "not seek to do other than enact a system of military law in accordance with the traditional and constitutional view of the supplementary function of such law."
We therefore, have no doubt in our minds that being a special legal framework, the PAA is primarily a disciplinary statute that applies exclusively to a specified group of people, i.e., members of the Armed Forces. It is designed to achieve a goal and objective defined in clause (a) of sub-Article (3) of Article 8 of the Constitution, that is, ensuring the proper discharge of their duties or maintenance of the discipline amongst them, for their operational effectiveness, and no more. The PAA since qualifies for the exemption from the provisions of Article 8 of the Constitution, therefore, does not offer the fundamental rights to persons subject to it. The MJS under the PAA provides accountability mechanisms for all types of misconduct on account of violation or breach of any provision of the PAA, Rules, Regulations or ethical standards, by members of the Armed Forces.
Question No. (i) supra stands answered as under: Clause (d) of subsection (1) of section 2 of the PAA does not serve the purpose of clause (a) of sub-Article (3) of Article 8 of the Constitution.
Insertion of Clause (d) in subsection (1) of section 2 and subsection 4 in section 59 of the PAA:
7. By virtue of Ordinance No. III of 1967, clause (d) was added to sub-section (1) of Section 2 of the PAA, endorsed by the Parliament. Pursuant thereto, persons not otherwise subject to the PAA (civilians), accused of the following offences, were also made subject to this Act and are made liable to be tried by courts martial as well:
(i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or
(ii) having committed, in relation to any work of defence, arsenal, Navy, Military or Air Force established or station, ship or aircraft of otherwise in relation to the Naval, Military or Air Force of Pakistan, an offence under the Official Secrets Act, 1952.
Similarly, subsection (4) was added to section 59 of the PAA, describing the said offences as "Civil Offences". Admittedly, the offence mentioned in clause (d)(i) was already an offence under section 131 of the PPC, whereas, offences mentioned in clause (d)(ii) were offences punishable under the Official Secrets Act, 1923 ('Act of 1923'). Initially, offences mentioned in clause (d), were triable only by ordinary criminal courts, however, after adding subsection (4) to section 59 of the PAA, the jurisdiction of courts martial has also been extended to try persons not otherwise subject to PAA, accused of the said offences. Admittedly, the PAA does not bar the ordinary criminal courts from trying persons accused of offences under clause (d). Under section 94 of the PAA, a discretion has been assigned to the prescribed officer to decide before which Court, the proceedings regarding civil offences shall be instituted. The authority granted to the "prescribed officer" is not absolute, rather is restricted only to choose a forum of trial, regarding civil offences, committed by members of the Armed Forces and the nexus of the offence(s) with the proper discharge of their duties or the maintenance of discipline amongst them. Thus, the "status" of a person accused of offences under the Act, the nexus of the offence with the purpose and object of clause (a) of sub-Article (3) of Article 8 of the Constitution shall be the determining factor. Reliance in this behalf is placed on the case of Province of Sindh[5]. In the said judgment, at Page 564, this Court has referred the following remarks of Justice William Douglas of United States Supreme Court: "Law has reached at finest moment when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered."
8. In the year 1972, Brig. (R) F.B. Ali and others were charged under clause (d)(i) of subsection (1) of section 2 of the PAA. They challenged the legislative competence of the Parliament of adding the said clause in the PAA. Besides, it was contended that being civilians, their trial by the courts martial violates their Fundamental Rights No. 1 and 15, guaranteed by the 1962's Constitution. This Court has held that the Central Legislature is competent to legislate any law relating to affairs of the Central Government. However, it was declared that clause (d) introduced in subsection (1) of section 2 of the PAA does not serve the purpose of clause (a) of sub-Article (3) of Article 6 of the 1962's Constitution. Relevant portion of F.B. Ali[6] at page 527 is as under: "In this view of the matter, it is not necessary to consider whether clause (3) of Article 6 of the 1962 Constitution is attracted in the circumstances of this case, but since arguments have been advanced on the basis of this clause, I would like, for the sake of completeness, to say that if the law was violative of any of the fundamental rights then this clause (3) would not protect it from challenge under sub-clause(i). This sub-clause (i) of clause (3) of Article 6 reads as follows:-- (Emphasis supplied)
"(3) The provision of this Article shall not apply to----
(i) any law relating to members of the Defence Services, or of the forces charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them."
"This only protects laws relating to the members of the defense services or of the forces charged with the maintenance of public order which have been made for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline amongst them. Such ouster clauses must be interpreted strictly, and unless the law comes within the four corners of the exempting clause, it cannot claim to be exempted. The Ordinances under challenge were not, in my opinion, made for any of these purposes and, therefore, did not qualify for the exemption granted by the said clause." (Emphasis supplied).
9. This Court upon strict interpretation of the exempting clause, concluded that clause (d) did not qualify for the exemption granted by the said clause. The judgment distinguished clause (d) from rest of the provisions of the PAA. It was settled that the main purpose of clause (d) was merely to make the offence triable by a new forum, under the PAA. Relevant extract at Page 526 is as under: "The main purpose of this addition was to effectuate the purpose sought to be achieved by the addition of clause (d) to subsection (1) of section 2 of the Army Act and to make the offence itself triable under the said Act when committed by persons accused of such offence. This becomes necessary because otherwise such persons would have been liable for trial under the Army Act only in respect of an offence of the said type committed after they became subject to the Act as a result of the accusation, which would necessarily be made after the commission of the offence.
(Emphasis supplied)
At the same page, this Court has relied upon the following passage of the judgment of the Peshawar High Court in Gul Akbar[7]: "The Ordinances merely had the accumulative effect of providing a new forum of trial. This was not violative of any of the provisions of the 1962 Constitution."
At Page 531, following is the ratio of the judgment: "...There is no possibility of any one picking and choosing a particular person so accused for trial in one manner and leaving others to be tried under the general law by reason of the amendment introduced by clause (d) in subsection (1) of section 2 of the Army Act. All persons accused of an offence of this nature, whether members of the defence services or civilians, are now triable under the Army Act, that is to say, that all persons, similarly situated or similarly accused, will now be able to be tried under the Army Act in the same manner without any discrimination. (Emphasis supplied)
The learned counsel for the respondents stated that this Court in F.B. Ali has held that the purpose and the accumulative effect of clause (d), is only providing a new forum of trial for non-military persons, therefore, it does not violate any provision of the Constitution. He added that the Court has declared that clause (d) did not qualify for the exemption granted by the Constitution, as such, the persons accused of the offences under clause (d) are entitled for all their fundamental rights. The learned counsel for the appellants refuted the contentions of the learned counsel for the respondents and stated that the above extracts of F.B. Ali are just observations of this Court, which were neither pleaded by the then petitioners in their petitions nor were argued by their learned counsels. According to him, these observations have no relevancy with the main issue, therefore, are obiter dicta, having no binding effect.
Obiter dicta:
10. In legal terms, obiter dicta refers to a judge's comments or observations in a case, that are not essential to the court's decision. Sometimes, judges give remarks or discuss some hypothetical facts or form an opinion which are not directly related to the main issue. Such comments, observations, remarks or discussions are of course obiter dicta and are not binding as precedents; however, they can be persuasive. It is important to mention that in F.B. Ali, leave was granted to consider vires of clause (d) of subsection (1) of section 2 of the PAA on the touchstone of the Constitution. The arguments of then learned counsel for the petitioner were discussed in the judgment at Page 531, urging that the trial of then petitioners by the court martial would infringe their fundamental rights, guaranteed by the Constitution. It is evident from the record that the issue in F.B. Ali had a direct nexus with Article 6 of the 1962's Constitution as a whole, that is why, this Court had granted leave on the grounds urged by the then learned counsel and dilated upon the same. After detailed discussion and deliberations, it was held that clause (d) does not serve the purpose of clause (a) of sub-Article (3) of Article 6 of the Constitution. Without discussing Article 6 of the 1962's Constitution as a whole, interpretation of clause (d) could not have been done. It is obvious that this Court had interpreted clause (d) in the context of the relevant provision of the 1962's Constitution. It determined the purpose, applicability of the fundamental rights to persons accused of the offence under the said clause, and the forum of trial. These findings (referred to hereinabove) were essential to the court's decision, therefore, are actually ratio decidendi, having binding effect, hence, cannot be termed as obiter dicta. Without prejudice to what has been stated herein, even if it is believed that the said observations were obiter dicta, they have a direct relevance with the issue involved in the present matter, hence, are persuasive. We can rely upon the same and apply as a precedent.
11. Besides, the learned counsel for the appellants argued that the PAA is not person-specific, rather it relates to members of the Armed Forces. He added that the offences mentioned in clause (d) are prejudicial to the Army's interest, results into breach of the discipline and good order of members of the Armed Forces and also affect the proper discharge of their duties, therefore, having direct nexus with them. He stated that clause (d) serves the purpose of clause (a) of sub-Article (3) of Article 8 of the Constitution, as such, is part of the PAA for all intents and purposes, therefore, persons not otherwise subject to PAA, accused of clause (d), are made subject to the Act and are triable by courts martial.
The Object & Scope of Clause (d):
12. The constitution-makers have restricted the legislative competence of the legislature with regard to enacting any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for a limited purpose of ensuring the proper discharge of their duties or the maintenance of discipline amongst them. Persons not otherwise subject to PAA, whose "status" is though not that of members of the Armed Forces nor are under the military discipline, have been made subject to the PAA, merely on account of being accused of an offence under clause (d). They do not share the common characteristics with members of the Armed Forces. No doubt, the offences mentioned in clause (d) are against the military interest, and some of them are grave in nature, but they neither relate to code of conduct nor to the terms and conditions of service of members of the Armed Forces. Similarly, these offences have no relation with the proper discharge of their duties or the maintenance of discipline amongst them. For this reason, instead of categorizing them as service offences, they are described as civil offences by adding subsection (4) to section 59 of the PAA. Clause (d) does not meet the criteria for the purpose of applying it to a particular group of citizens nor does it achieve the purpose, as provided by clause (a) of sub-Article (3) of Article 8 of the Constitution, as such, did not qualify for the exemption granted by the said sub-Article. If clause (d) is considered as a part of the PAA for all intents and purposes, it will not only be inconsistent with the rights conferred by Chapter I of Part-II of the Constitution (the Fundamental Rights), but will also amount to taking away or abridging the said rights of persons (civilians) accused of the offences under clause(d), hence will be void. Merely, by insertion of clause (d) in subsection (1) of section 2 of the PAA, citizens not otherwise subject to the Act, cannot be deprived of their fundamental rights. This Court in the case of Jibendra Kishor and others[8] has held as under: "The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of the Constitution to say that the right is fundamental but may be taken away by the law."
13. Besides, the pre-partition Indian Army Act of 1911, the Indian Army Act[9], 1950 and the PAA of 1952, replacing the Indian Army Act of 1911, do not contain the offences mentioned in clause (d), because of the fact that they are crimes against the State, applicable to general public and are triable by ordinary courts. Had these offences any nexus with the conduct and the proper discharge of duties of members of the Armed Forces or the maintenance of discipline amongst them, the legislature could have described them as offences under all the three statutes. The learned counsel for the respondents argued that the intention behind enacting clause (d) was political, instead of serving the Armed Forces. That is why, this Court in F.B. Ali has held that clause
(d) did not serve the purpose of clause (a) of sub-Article (3) of Article 6 of 1962's Constitution, which is perimetria of sub-Article (3) of Article (8) of the 1973's Constitution.
14. Let it be clear that this Court had endorsed clause (d) only to the extent of creation of an additional forum of trial of persons not otherwise subject to PAA, accused of offence under clause
(d) by courts martial, consisting of executive. While doing so, this Court was mindful of the fact that at that time, the 1962's Constitution, drafted by a military dictator, put no bar upon forums consisting of executive nor was there any concept of separation of the judiciary from the executive.
However, after the promulgation of 1973's Constitution, the situation has changed. Courts' martial jurisdiction trying non-military persons accused of offences under clause (d) has been challenged for the first time through these proceedings. Being a case of first impression, we would therefore, answer the questions framed supra in the light of the provisions of the 1973's Constitution.
The 1973's Constitution:
15. Preamble of the Constitution states the purpose, aim and intent of its makers, that determines how this country is run. Relevant extract whereof is reproduced below: WHEREAS sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the People of Pakistan within the limits prescribed by Him is a sacred trust; AND WHEREAS it is the will of the people of Pakistan to establish and order; WHEREIN the State shall exercise its powers and authority through the chosen representatives of people; WHEREIN the independence of the judiciary shall be fully secured.
Constitution is a supreme law of a country. It describes the basic concept of the State and its institutions on the one hand, and the government, on the other hand. It defines and guarantees the fundamental rights of citizens. It ensures that the government does not own the State, rather, manages it under the authority of the Constitution on behalf of the people, through their elected representatives. It sets out the limits of government's power, in order to protect democratic process. The Preamble dictates that the authority to be exercised within the limit prescribed by Allah as a sacred trust. It binds the three organs of the State, i.e, the legislature, the executive and the judiciary to fundamental rule of trichotomy of power so that none can dominate the State. This principle is fundamental, aims to prevent any organ of the State from accumulating excessive power, ensuring checks and balances. The Oath of members of the offices of the three organs of the State provides a self-defence mechanism to preserve, protect and defend the Constitution, in order to do right to all manner of people according to law without fear or favour.
16. The Quran stresses that it is the fundamental duty of the Messenger of Allah (PBUH) to establish a society in which the rights of all the people are guaranteed and protected on the basis of equity and justice. Allah Almighty in Quran, Chapter No.4, Verse 105 says: We have revealed to you the book with the truth so that you may judge between people in accordance with the Right Way which Allah has shown you.
The Holy Quran and the Prophet (PBUH) stress the need of unbiased and impartial judiciary as a vital principle of rule of law. To serve the common people fair justice, the great Caliph, Hazrat Umar (R.A.) separated the judiciary from the executive and declared it a sovereign and independent organ of the State, in order to proceed without any bias, fear, favour, pressure or influence of State or from any outsider. Hazrat Ali (R.A.), is known for his wisdom and justice. He emphasized that system of disblief (kufr) can work but system of injustice cannot work." He urged that nothing can cause nations to flourish like justice. The Muslim jurists described that the obligation of an independent, impartial and a righteous judge is a worship of the highest rank, after the belief in Allah. This proves that Islam recognizes the administration of justice as one of the most important duties of the judges.
17. To give effect to the command of the Holy Quran, Sunnah and the universal principle regarding independence of the judiciary, the principles and provisions set out in the Objectives Resolution reproduced in the Annex to the Constitution, have been made substantive part of the Constitution by insertion of Article 2A in it. It contains a provision that the independence of the judiciary shall be fully, secured. Judicial independence is the ability of judiciary and judges to perform their duties freely and fairly, without any bias, fear, favour, influence, pressure or control from any outside force, whether from the executive, legislature, terrorists, powerful influentials or from within the judiciary, to ensure just and democratic society. Thus, the independence of the judiciary in the sense of impartiality is considered obligatory in Islam, for the purpose of providing fair justice and protecting fundamental rights of the people. Article 227 of the Constitution commands that All existing laws shall be brought in conformity with the injunctions of Islam, as laid down in the Holy Quran and Sunnah, in this Part referred to as the injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions. It is, therefore, a constitutional obligation of the State to fully, secure the independence of the judiciary, ensuring that it is not to be subject to any authority or any organ of the State, other than the Holy Quran and Sunnah, the Constitution and the law. Any law compromising independence of the judiciary, inconsistent with, and repugnant to the injunctions of Islam, shall be violative of Article 227 of the Constitution, hence, be void.
Separation of Judiciary from the Executive:
18. The 1973's Constitution provides a mechanism for the judicature in its Article 175, Chapter 1 of Part-VII, that exclusively deals with the establishment of courts in Pakistan. Its sub-Article (2) empowers the Legislature to enact laws, that defines courts' structure, confers jurisdiction and power upon them for the determination of civil rights and obligations or for the determination of guilt or innocence in any criminal charge against a citizen. Sub-Article (3) of Article 175 of the Constitution mandates that "the Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day". This sub-Article explicitly directs to separate the judiciary from the executive, aims to fully secure the independence of the judiciary, to give effect to Article 2A of the Constitution. Independent and impartial courts are designed to protect people against the arbitrary powers of a ruler and the legislature, misuse of laws and to safeguard the fundamental rights of citizens guaranteed by the Constitution. Independent, impartial and unbiased judges make decisions without fear or favour, in accordance with the injunctions of Islam, the provisions of the Constitution, the law and on merits. Such courts and judges establish and maintain the integrity of the judicial system and promote public confidence in the administration of justice. To achieve the goal of an independent, unbiased and impartial judiciary, it must be separated from the executive in all respects. Fair and transparent selection of judges, without the influence and control of the executive, security of their service tenure and financial independence of the judiciary must be secured. In the case of Sh. Liaquat Hussain[10], this Court held as under: "(v) That the hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic judicial System) in order to ensure independence of Judiciary and, therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and or the Supreme Court does not fit in within the judicial framework of the Constitution".
19. Before the 1973's Constitution, the system of executive judiciary, trying civil and criminal cases, was in vogue. There was no provision in the 1962's Constitution analogous to sub-Article (3) of Article 175 of 1973's Constitution, therefore, there was no concept of separation of the judiciary from the executive. The Members of the judiciary were either from executive or were under the command, control, discipline and influence of the executive. After the promulgation of the 1973's Constitution, prosecuting citizens on criminal charges being a judicial function, is performed only by courts, established by the Constitution and law, under Article 175 of the Constitution. Such courts must be independent, without the command, control, discipline and influence of the executive. The logic behind the separation of the judiciary from the executive is that criminal offences are against the State, whereas, the executive is responsible for administration of the same. A person who breaches a law, is an accused of the State, therefore, the executive having an interest into the matter, cannot itself perform as a judge to punish the accused. It is for this reason, sub-Article (3) of Article 175 of the Constitution mandates that the judiciary shall be separated from the executive, within fourteen years of commencement of the Constitution.
20. After passage of the time provided by the Constitution, all courts, forums, tribunals consisting of executive, trying persons, other than members of the Armed Forces are no longer valid. Despite such a clear constitutional directive, some courts comprising of executive were still prosecuting citizens. Out of those, Criminal Courts in Balochistan established through Ordinance II of 1968, consisting of executive, continued criminal trials. The High Court of Balochistan upon a petition filed by a renowned lawyer from Balochistan Azizullah Memon (late) declared that upon the expiry of fourteen years period, the existence of criminal courts and forums consisting of executive after the year 1987, are violative of sub-Article (3) of Article 175 of the Constitution. The Province of Balochistan feeling aggrieved, filed a petition before this Court, which was dismissed upholding the judgment of the High Court. This Court has also relied upon the judgment of High Court of Sindh in in Sharaf Faridi[11]. The relevant extract of Azizullah Memon[12] is as under: "...The Constitution provides for separation of judiciary from the executive. It aims at an independent judiciary which is an important organ of the State within the Constitutional sphere.
The Constitution provides for progressive separation of the judiciary and had fixed a time limit for such separation. It expired in the year 1987 and from then onwards, irrespective of the fact whether steps have been taken or not, judiciary stands separated and does not and should not seek aid of executive authorities for its separation. Separation of judiciary is the corner-stone of independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trial of offence in the hands of the executive Officers. This is merely a semblance of establishing Courts which are authorized to decide cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of Constitution. Considering from this point of view we find that the impugned Ordinance II of 1968 from the cognizance of the case till the revision is disposed of, the entire machinery is in the hands of the executive from Naib-Tehsildar to the official of the Government in the Ministry. Such a procedure can hardly be conducive to the administration of justice and development of the area nor will it achieve the desired result of bringing law and order, peace and tranquility or economic prosperity and well-being. The Constitution envisages independent judiciary separate from the executive. Thus any Tribunal created under the control and superintendence of the executive for adjudication of civil or criminal cases will be in complete conflict with Articles 175, 9 and 25." (Emphasis supplied)
21. Even otherwise, a power or jurisdiction assigned to any court by previous Constitution or law, ceases to exist, if a new Constitution or law takes away such jurisdiction. Reliance in this behalf is placed on the case of JS Bank Limited[13], wherein, this Court has held as under: "11. ....The Punjab Sugar Factories Control Act, 1950 is a pre-Constitution era piece of legislation where the legislature had unfettered powers to regulate any business and trade. However, after the introduction of fundamental rights in the successive Constitutions, these powers of the legislatures and executive are subject to the Constitution and must be interpreted as such. In the case of Begum Zeb-un-Nissa Hamidullah, Editor and Publisher of 'The Mirror', Karachi v. Pakistan, through the Secretary, Ministry of Interior Government of Pakistan (PLD 1958 SC 35) it was observed: "The Security of Pakistan Act is a pre-Constitution Act, having been passed in May 1952 when no basic rights had been guaranteed by the Constitution and the Government had absolute authority to restrict the freedom of speech and expression by securing legislation to enable it to act in the manner it considered expedient. After the Constitution; however, these powers no longer exist and neither the legislature nor the Government can impose any restriction on freedom of speech and expression except for the purposes mentioned in Article 8." (Emphasis supplied).
22. Similarly, in the case of Sh. Riaz-ul-Haq[14], this Court held as under:
67. It has already been discussed hereinabove that the Service Tribunal performs 'judicial functions' in exercise of 'judicial powers' conferred upon it by the Legislature and therefore, enjoys status of a 'Court' and is required to be separated from the Executive in terms of Article 175(3) of the Constitution; however, no steps have been taken in this behalf by making suitable amendments in the Service Tribunals Acts, because existing provisions of the, law relating to the appointment of Chairman and Members of the Service Tribunals do not provide for consultation of the Chief Justice and ensure that they (Chairman and the Members) should act independently following the principle of independence of judiciary, especially since their role is in substitution of the highest constitutional body i.e. High Court. And the Tribunal as judicial fora, must enforce the Fundamental Right of access to justice and they should also enjoy financial autonomy as has been given to the High Courts and the Supreme Court. Reference in this behalf may be made the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105)
23. Upon insertion of clause (d) in subsection (1) of section 2 and subsection (4) in section 59 of the PAA, the courts martial comprising of serving officers of the Army are prosecuting the persons accused of offences of clause (d). The purpose of adding the said clause in the PAA is that the offences mentioned therein are prejudicial to the interests of the Army. Admittedly, it is a fundamental principle of natural justice that no one ought to be a judge in his own cause or in which he has an interest. This principle is strictly observed to avoid any instance of bias, resulting into injustice. Under such circumstances, the courts martial and the forum of appeal under the PAA, manned or run by the executive, under the command, control and discipline of the Federal Government, cannot be regarded as unbiased, independent or impartial forums. They cannot protect the fundamental rights and liberties of citizens in a criminal charge or for the determination of their rights and obligations. Thus, courts martial and the forum of appeal are violative of Articles 2A, 175(3) and 227 of the Constitution. After the expiry of the period of fourteen years, prescribed by sub-Article (3) of Article 175 of the Constitution, the courts martial and the forum of appeal under the PAA, have no jurisdiction to prosecute persons accused of clause (d). The jurisdiction to try civilians extended to courts martial, especially, in the light of the judgment of F.B. Ali ceases to exist.
The discretion of "prescribed officer" assigned to him by virtue of section 94 of the PAA relating to transfer of cases of civilians to courts martial, in respect of civil offences under clause (d), is no more available. However, the courts martial have a limited jurisdiction to the extent of prosecuting members of the Armed Forces for violation of military laws and civil offences.
Independence of Judiciary under the United Nations Human Rights Commission (UNHRC):
24. In its 7th National Congress on the Prevention of Crime and the Treatment of Offenders held at Milan in 1985, a declaration was made by the UNHRC with regard to "principle of equality before the law, of the presumption of innocence and of the right of a fair and public hearing by a competent, independent and impartial tribunal established by law". The forum issued the following guidelines in this behalf and made it necessary for the Member States to adopt:
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.
The African Commission on Human and Peoples' Rights ('ACHPR') in the case of "Law Office of Ghazi Suleiman v Sudan[15]", held as under: "Civilians appearing before and being tried by a military court presided over by active military officers who are still under military regulations violates the fundamental principle of fair trial."
The ACHPR in the case of "Law Office of Ghazi Suleiman v Sudan[16]", has held as under: "Selection of active military officers to play the role of judges violates the provisions of Paragraph 10 of the Fundamental Principles on the Independence of the Judiciary.
Similarly, it stated that, "Military courts should respect the norms of a fair trial. They should in no case try civilians. Likewise, military courts should not deal with offences which are under the purview of ordinary courts."
25. According to Article 14 of the International Covenant on Civil and Political Rights, 1966 ('ICCPR'), "everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law". The UNHRC has gone far and declared that Article 14 of the ICCPR applies to all courts, whether ordinary or specialized, civilian or military[17]. The Inter- American Court of Human Rights has held that under no circumstances should civilians be tried before the military court[18]. Pakistan being the signatory of the document, is a party, ought to comply the principles of ICCPR. It is important to mention here that when the appeals were reserved for judgment on 5 May 2025, the International Commission of Jurists (ICJ) released a briefing paper[19] with the title, observations and conclusion as under: 'Military "Justice" in Pakistan: A Glaring Surrender of Human Rights: Observation in the Paper: The case before the Supreme Court is of critical importance for the rule of law in Pakistan, and provides the Court with an important opportunity to reverse the militarization of justice in the country and to reinforce independence of the judiciary and respect for human rights.
Conclusion: In its Concluding Observations, the Committee expressed deep concern that Pakistan had authorized military courts to try civilians for terrorism-related offences, "particularly in view of the lack of independence of military court judges, which are within the military hierarchy" and the "practices of such courts, including the holding of closed trials."
The Committee recommended that Pakistan "[p]ut an end to the use of military courts for terrorism-related prosecutions, transfer criminal cases brought against civilians from military courts to civil courts and provide the opportunity for appeal in civil courts of cases involving civilians that have already been adjudicated under military jurisdiction.
The international standards require that accused of any criminal offence, no matter how heinous, are guaranteed a fair trial by an independent, impartial and competent forum. Trial of persons not otherwise subject to PAA by courts martial and forum of an appeal to the Chief of the Army Staff or his nominee negate the internationally recognized principle of independence of judiciary, hence, is violative of the international commitments made by Pakistan through covenants and treaties. This may be a hurdle for the people of Pakistan to attain their rightful and honored place amongst the nations of the world. It is for this reason, this Court in Khawaja Asif's[20] case has recognized the binding nature of international instruments as follows: Although the Human Rights Declaration is not a legally binding treaty, its provisions are considered customary international law and binding, as such, on all member States of the United Nations and therefore on Pakistan.
Laws Inconsistent with or in Derogation of Fundamental Rights to be Void (Article 8):
26. All valid laws derive their legitimacy from the Constitution and through it, from the Legislature, on behalf of the people. The authority of the Parliament to legislate must be consistent with and in accordance with the Constitution. Article 8 of the Constitution safeguards the fundamental rights guaranteed by the Constitution and applies to all laws enacted by the Parliament or the Provincial Assemblies. Its sub-Article (1) addresses that any law existing before the promulgation of the Constitution, that is inconsistent with the rights conferred by the Constitution, shall to the extent of such inconsistency, be void. Similarly, its sub-Article (2) mandates that the State shall not make any law which takes away or abridges the rights guaranteed by the Constitution and any law made in contravention of this clause, shall, to the extent of such contravention, be void. However, sub-Article (3) of Article 8 of the Constitution provides an exemption from the provisions of Article 8 of the Constitution in respect of any law relating to a specific group of people and for a limited goal.
Fundamental Rights:
27. Fundamental rights guaranteed by the Constitution are the cornerstone of true democracy and are the basis to a fair and just society, which are essential for an individual to live with dignity, without fear of Government's overreach. They do not merely play a defensive function against the State, but are entitled to State's protection. They cannot be abridged or taken away, in any circumstance, except expressly provided by the Constitution. The Constitution binds the State to safeguard, enforce and apply these fundamental rights. The following fundamental rights are necessary for the determination of the controversy in hand:
(a) Security of person: (Article 9)
Article 9 of the Constitution, mandates that No person shall be deprived of life or liberty save in accordance with law;
(b) Safeguard as to arrest and detention (Article 10) 10(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
Every person who is arrested and detained (2)----- in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) ---
(4) ---
(5) ---
(6) ---
(7) ---
(8) ---
(9) ---
28. The security of life and liberty of a person is a fundamental right, to be free from arbitrary deprivation of life and liberty. Article 9 of the Constitution guarantees and ensures that citizens have the right for protection from harm, physical danger, potential risks and threats to their life, unjust or illegal detention or imprisonment and of any action that could take away their freedom or life, in all circumstances. An independent judiciary can act as a check on government's power to ensure the security of life and liberty of citizens. The Criminal Justice System ('CJS') entails a set of laws and principles that provide a procedure, aims to protect life and liberty of citizens, to ensure order in society. Article 10 of the Constitution ensures safeguard as to arrest and detention of a person, with a right to consult and be defended by a legal practitioner of his own choice. It is also made sure that no person shall be detained in custody beyond a period of twenty-four hours, without the authority of a Magistrate. The courts martial established under the MJS, consisting of executive, are not independent and impartial. They do not provide the constitutional protection of security of life and liberty of a person, and safeguard as to his arrest and detention. While detained in military custody, the provisions of jail manual are not applicable to the persons accused of military crime. Courts' martial proceedings are in-camera. The right of accused to consult and be defended by a legal practitioner of his own choice guaranteed by the Constitution, is subject to the approval of the Chief of the Army Staff or the Convening Officer, as provided by rule 82 of the Pakistan Army Act, Rules 1954. This is a fundamental right of a person under sub-Article (1) of Article 10 of the Constitution, which cannot be made conditional. The custody of accused of offence under clause (d) and the procedure adopted by the courts martial are inconsistent with, takes away and abridge their fundamental rights, which is violative of Articles 9 and 10 of the Constitution.
Right to Fair Trial & Due Process (Article 10-A):
29. The right to fair trial and due process is universally accepted as a fundamental right, therefore, the legislature realizing its importance and necessity, inserted Article 10A in Chapter 1 of Part II of the Constitution, by the Constitution (Eighteenth Amendment) Act, 2010. It mandates that, for the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process. Fair trial and due process help limiting abuse by Governments and State authorities and ensure integrity and fairness of the legal system. Due process has a requirement that the legal matter pertaining to civil rights and obligations and a criminal charge against a citizen be resolved according to law, established rules and principles, on the basis of evidence presented. The protection of person's life, liberty or property, without fair trial and due process, is impossible. The provision of fair trial and due process, guaranteed by the Constitution can only be possible, if the judiciary is separate from the executive, the judges are independent, impartial and unbiased, not influenced by any personal interest. Reliance is placed on Sh. Riaz ul Haq[21], relevant extract at Para 28 is reproduced herein below: "It is to be noted that the right of "access to justice to all" is a well recognized inviolable right enshrined in Article 9 of the Constitution and is equally found in the doctrine of "due process of law". It includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial court or tribunal."
The Right to Appeal:
30. There is always a possibility of mistakes or errors in judgments of the courts. An appeal to a higher, independent and impartial forum is universally recognized tool, to scrutinize the decision of fora below, so as to eliminate a slightest instance of miscarriage of justice. Appeal being continuation of trial is, therefore, an important substantial ingredient of the fundamental principles of fair trial and due process, without which, the fundamental rights of individuals will be compromised. This Court in the case of Federation of Pakistan[22] has held as under: "We also consider that the Islamic Injunctions of Adal , Qist and Ihsan warrant that in cases where authentication of the declaration is refused by the District Magistrate, the aggrieved party should be entitled to test the correctness of such an important decision effecting the livelihood of a person, by way of an appeal."
Denial of right of appeal before an independent and impartial forum, established by Constitution or by law, violates the principle of natural justice and the injunctions of Islam as well. This Court in Khan Asfandyar Wali[23] has held as under: The purported denial of the right of appeal is violative not only of Article 2A of the Constitution but also power of the Superior Courts to correct such orders through exercise of their Constitutional jurisdiction. Clearly, the denial of right of appeal is contrary to the norms of justice as also violative of principles of natural justice. Also refer Messrs Chenab Cement Product (Pvt) Ltd. and others v.
Banking Tribunal, Lahore and others (PLD 1996 Lahore 672). Thus, section 13(c) which denies the right of appeal is violative of the principles of the Islamic Injunctions and the same needs to be suitably amended so as to allow right of appeal to the accused as well as to the non- accused/third party whose claim or objection against freezing of property is dismissed by the Accountability Court.
Similarly, in the case of Ministry of Defense Vs. General Public[24] this Court recognized the right of appeal as one of the important principles of the injunctions of Islam. The relevant portion thereof is reproduced below: "The Federal Shariat Court in its impugned judgment has also held that the right of appeal was recognised by the Holy Prophet (Peace be upon him) as well as by the Khulafa-e-Rashideen and discussed this question in great detail. Nothing has been shown to us in refutation thereof. The plea, thus, that barring the right of appeal does not offend against the Injunctions of Islam, cannot be accepted."
The Preamble of the Supreme Court Practice and Procedure Act, 2023, recognizes the right of appeal as a fundamental right under Article 10A of the Constitution, which reads as under: AND WHEREAS Article 10A, of the Constitution mandated right to fair trial and due process, Article 4 of the Constitution guarantees treatment in accordance with law, Article 25 of the Constitution prohibits discriminatory treatment and right of appeal is a universal fundamental principle of jurisprudence and Islam guarantees right of appeal, therefore, pursuant of Article 175 (2) read with Article 191 of the Constitution this law is being enacted; Such recognition has been endorsed by a Full Court in the case of Raja Amir[25]. Besides, the Constitutional Bench of this Court in the case of Senior Joint Director Foreign Exchange Operations Division SBP[26] has also recognized an appeal as a fundamental right, in the following terms: "...There is always a possibility of error, mistake of facts or law in a decision at the level of initial forum, therefore, the right of appeal is a substantive right of an aggrieved person. It existed since the establishment of judiciary, with its primary function to protect against miscarriage of justice. A right of access to justice and a right to a fair trial and due process is a fundamental right of a citizen, guaranteed by Article 10A of the Constitution of the Islamic Republic of Pakistan, 1973 ('Constitution'), which includes an appeal to a higher, independent and impartial forum to scrutinize the decision of the fora below. It plays a role to review very carefully, to interpret and apply law in most accurate and uniform manner within the limits of legal procedure, in order to eliminate a slightest instance of miscarriage of justice. Denial of right of appeal violates the fundamental rights of a citizen, the principles of natural justice and the injunctions of Islam".
(Emphasis added).
31. It is most important to mention here that even in the case in hand the honorable majority members of this Bench have also recognized the right of appeal before an independent and impartial forum as a fundamental right. In paragraph 2 (iv) of their short order, it was said as under: iv. No doubt, all such miscreants, lawbreakers, and perpetrators of such incidents are liable to be punished on proving their guilt, subject to right of appeal against their conviction. An independent right of appeal before an independent forum is also a basic limb of the doctrine of due process and the right to a fair trial, as enshrined and envisioned under Article 10-A of the Constitution".
(Emphasis supplied)
The learned majority members of this Bench have realized that a right of an appeal before an independent forum is a basic limb of the doctrine of due process and the right to a fair trial, which is not available in the MJS. The Hon'ble majority Members instead of declaring clause (d) ultra vires the Constitution, have suggested that the Government and the Parliament may provide a remedy of an appeal before the High Court to persons convicted for the offences under clause (d).
32. Persons not otherwise subject to PAA, accused of clause (d), are prosecuted by courts martial consisting of serving army officers and appeal against their decisions lies before the Chief of the Army Staff or his nominee, who are under the military discipline. Members of courts martial and the appellate authority under the PAA are judges in their own cause. It is a settled principle of law that "justice should not only be done, but should manifestly and undoubtedly be seen to be done". This maxim emphasizes the importance of independence and impartiality of judicial proceedings, which is not available in courts martial. The criminal justice system erected under the provision of Article 175 of the Constitution is based on principle of independence of judiciary, fairness, due process and fair trial. The procedure adopted by the MJS does not fulfill the criteria of fair trial and due process, as provided by Article 10A of the Constitution. Thus, Clause (d) of subsection (1) of section 2 and subsection (4) of section 59 of the PAA are inconsistent with the fundamental rights, hence, are void. Reliance is placed on the case of Waris Mian[27] and Mushahid Shah[28].
Right to information (Article 19-A):
33. Under Article 19A of the Constitution, every citizen shall have the right to have access to information in all matters of public importance subject to regulations and reasonable restrictions imposed by law. The life and liberty of an accused facing criminal proceedings is at stake. The access to record helps the accused under-trial to know about the fate of his case, enabling to defend himself, to protect his life, liberty and property. The right to information is a fundamental right of a citizen, which cannot be denied, abridged or taken away, unless expressly provided by the Constitution. In the case of Justice Qazi Faez Isa[29], one of the members of the Bench, Justice Maqbool Baqar has said that: "Sunshine is said to be the best of disinfectant; we need to ask ourselves whether the traditional close architecture of our court rooms needs to be redesigned to allow sunshine of public access through live audio/video streaming?
And do we wish to make out justice system more transparent by holding judicial proceedings in public gaze?
Would not the openness of the court to public through live streaming be an effective restraint on the possible misuse of judicial power under this jurisdiction?
While giving answer to these queries his lordship relied on Judge Damon Keith, writing for a unanimous panel of the Sixth Circuit Court of Appeals, remarked in the famous case of Detroit Free Press v. Ashcroft 303 F.3d 681 in the following terms: "Democracies die behind closed door...When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation."
Openness serves to ensure the durability of democracy. No organ of the State, however, has remained a greater mystery to people than the Judiciary."
The accused before the courts martial has no access to the record nor is he entitled to obtain its copies. Even, he is not informed for the reasons of his conviction. The courts' martial proceedings are conducted in-camera, restricting the right to open trial, will create a strong perception that justice in close doors is being manipulated. Besides, the accused will not be in a position to properly defend himself, will have a definite negative impact upon his life and liberty.
Such procedure under the MJS being inconsistent with and abridging the fundamental right to information of persons accused of offences under clause (d) of subsection (1) of section 2 of the PAA, guaranteed by Article 19A, is held unconstitutional.
Equality of Citizens (Article 25):
34. According to Article 25 of the Constitution, all citizens are equal before law and are entitled to equal protection of law. The principle of equal protection ensures that all citizens are treated alike under the law, irrespective of their background, race, religion, political affiliation, action or other classifications. This is a fundamental right guaranteed by the Constitution, ensuring that the law applies equally and no one is above the law. Treating citizens differently, without a reasonable classification amount to discrimination. This happens when two equally placed persons or groups of people are treated differently. Discriminating individuals in legal proceedings on account of their acts or nature of an offence, is a violation of the principle of equal before law and are entitled to equal protection of law. The offences under clause(d) (i) and (ii) are the offences under section 131, of the Pakistan Penal Code, 1860 ('PPC') and under section 3 of the Act of 1923, respectively, which are general in nature, apply to general public and are triable by courts, established in accordance with Article 175 of the Constitution ('criminal courts'). Clause (d) was made part of the PAA on the pretext that the offences of the said clause are prejudicial to the interests of Army or to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft, or otherwise in relation to the naval, military or air force affairs of Pakistan.
35. The actual text of section 3 of the Act of 1923 prescribes that, if any person for any purpose prejudicial to the safety or interest of the State, commits the offences mentioned in the said section, shall be guilty of offence under this Act. If a person commits an offence prejudicial to the safety or interest of the highest office of the State i.e. the President of Pakistan, in whom the Supreme Command of the Armed Forces vests, or the Parliament, will be dealt with under section 131 of the PPC or the Act of 1923, as the case may be, and be tried by ordinary court of criminal jurisdiction, with all his fundamental rights enshrined in the Constitution. To the contrary, if a person commits same offence, but relates to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft, or otherwise in relation to the naval, military or air force affairs of Pakistan, shall be prosecuted by courts martial. The offences mentioned in clause (d) are made specific to all the military branches, which come under the Ministry of Defence. The Ministry of Defence, is a department of the executive. Constitutionally, the State consists of the Legislature, the Executive and the Judiciary, therefore, keeping in view such concept, the Legislature enacted the Act of 1923, specifying that any act by a citizen for any purpose prejudicial to the safety or interest of the State is a crime under section 3 of the said Act. It covers all the three organs of the State including their respective departments and branches. Admittedly, the act of the accused of offence under clause (d) is prejudicial to the safety or interest of one of the departments of the Executive, hence, comes within the definition of the State. Persons accused of offence under clause
(d) are treated differently, without having a fundamental right, merely on account of their act on the pretext that it is prejudicial to the interests of army, is discriminatory and unjust, hence, is violative of Article 25 of the Constitution. 30 Effect of Denial of the Fundamental Rights:
36. Fundamental rights guaranteed by the Constitution are inalienable, unless expressly taken away by the Constitution. Taking away, abridging or denying the fundamental rights, has serious consequences. It can undermine the fundamental principle of democracy, can compromise the well-being of a citizen, amounts to giving a license to executive to abuse, torture, illegally detain and treat the citizens inhumanly. The denial of fundamental rights will also have a negative impact upon the economic treaties and domestic and foreign investments. Violating or denying the fundamental rights can weaken the rule of law. Last, but not the least, it can negatively impact international relations, can severely damage State's reputation, diplomatically. It may result into withdrawal of international favors, economic sanctions, restrictions on trade and the State may also face diplomatic isolation. Under such circumstances, the people of Pakistan may not prosper and attain their rightful and honored place amongst the nations of the world. In order to avoid such an adverse situation, the Constitution serves as a social contract between the State and the citizens, guaranteeing their fundamental rights. Article 5(2) of the Constitution mandates that, Obedience to the Constitution and law is the [inviolable] obligation of every citizen, whereever he may be and of every other person for the time being within Pakistan. Thus, the Constitution being the supreme law of the country, having binding effect on all the three organs of the State, i.e., the legislature, the executive and the judiciary, and every citizen across the board. No one, even the Chief Executive of the country is above the Constitution and law, and is bound to obey its command, to establish fair and just society.
Impugned Judgment:
37. The learned counsel for the appellants has stressed that the main emphasis of the author judge in the impugned judgment was upon sub-article (5) of Article 8 of the Constitution, which was not an issue before the Court. Admittedly, vires of clause (d) of sub-section (1) of Section 2 of the PAA in the context of clause (a) of sub-Article (3) of Article 8 of the Constitution was under challenge.
Sub-Article (5) of Article 8 of the Constitution provides that the fundamental rights shall not be suspended except as expressly provided by the Constitution. Part X of the Constitution relates to emergency provisions during the promulgation whereof, the Constitution empowers the President to suspend or take away certain rights temporarily. The learned author Judge has discussed the provisions of sub-Article (5) of Article 8 of the Constitution to highlight the importance of fundamental rights, that even for suspension of the same, the Constitution has expressly empowered the President to do so. Keeping in view the importance of the fundamental rights enshrined in the Constitution, how did it come to abridge or take away such rights through sub- legislation and that too, through an Ordinance, amending the PAA? Sub-Article (1) of Article 8 of the Constitution has expressly mandated that "any law, or any custom or usage, having the force of law, insofar as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void". Similarly, its sub-Article (2) commands that "the State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void". The only exemption from the fundamental rights is provided by sub-Article (3) of Article 8 of the Constitution. Since, vires of clause (d) was under challenge before the Hon'ble five members Bench of this Court, therefore, the learned Judges have based their judgment mainly on other grounds, like right to fair trial, separation of judiciary from executive, etc., with further deliberation on sub-Article (5) of Article 8 of the Constitution to give strength to the reasoning. Based on the constitutional provisions, judgments of this Court as well as of the foreign jurisdiction, it was rightly held that trial of civilians by courts martial violates their fundamental rights. We in principle agree with the conclusion arrived at by the majority members of the Bench, who delivered the impugned judgment, however, in addition, we have our own reasons to support the ratio of that judgment, that is, "trial of civilians by courts martial is without jurisdiction".
Functions of the Armed Forces:
38. Article 245 of the Constitution describes the following functions of the Armed Forces: "(1) The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so."
Under the 1962's Constitution, the functions of the Armed Forces were not defined. There was no bar upon the Parliament to extend the courts' martial jurisdiction to prosecute non-military persons.
However, Article 245 of the Constitution for the first time has prescribed the functions of the Armed Forces, limited to defend the State from external aggression and internal threat. Similarly, Article 175(3) of the Constitution mandates that the judiciary shall be separated from the executive, consequently, the function of the Armed Forces does not include prosecution of general criminal offences committed by civilians. It is a well settled principle of law that if any provision of the Constitution, or of any enactment, defines the function or jurisdiction of any authority or forum, exercising its powers beyond the defined scope is without jurisdiction. The Legislature derives its authority of legislation from the Constitution, therefore, the Parliament cannot enact any law beyond the scope prescribed by the Constitution. Extending the jurisdiction of courts martial by the Parliament by inserting clause (d) in subsection (1) of section 2 and subsection (4) in section 59 of the PAA, to prosecute civilians amount to expanding the function of the Armed Forces. Besides, indulging courts martial in adjudication of criminal cases of general nature in respect of general public would subject them to a strong criticism both in the case of conviction or acquittal of accused. This will result into loss of trust and confidence in the army, whose function as defined by the Constitution is only to defend and protect the country, and not to do the job of the judicature. It may adversely affect their performance while defending and protecting the country. Under such circumstances, trial of persons (civilians) accused of offences under clause (d) by courts martial comprising of members of executive, is not only beyond the scope and in excess of the functions and authority granted to the Armed Forces by Article 245 of the Constitution, but is also in violation of Article 175(3) of the Constitution.
Answer to Question No. (ii) is as under: The persons not otherwise subject to PAA, accused of offences under clause (d) of subsection (1) of section 2 of the PAA cannot be tried by the courts martial in the context of 1973's Constitution and the injunctions of Islam.
Elimination of Terrorism:
39. Generally, a wrong perception has been created as if the civil courts have failed to tackle the menace of terrorism and the courts martial are the solution to the problem. Basically, courts martial are convened only to prosecute persons subject to PAA accused of military offences or general offences. They do not have jurisdiction to deal the cases of terrorism or other criminal matters. In the year 2015, there was warlike situation in the country. In order to curb the terrorism, the Legislature decided to extend jurisdiction of the courts martial to try cases relating to terrorism, consequently, 21st Constitutional Amendment was introduced in the year 2015, pursuant thereto, the PAA was amended and courts martial jurisdiction was extended to try offences other than those mentioned in the Act, initially for two years, which period was extended for further two years, till 2019. Thereafter, the courts martial could not prosecute the non-military persons. A question arises as to whether the desired result of eliminating terrorism was achieved after the twenty-first Constitutional Amendment? It is a fact that within the prescribed period of four years, courts martial tried hardcore criminals and terrorists, but unfortunately, the situation did not improve nor was the desired goal of eliminating terrorism achieved. Naturally, because it was not the job of the army officer to prosecute these criminals.
40. The criticism upon the criminal courts is unfounded. It has not been supported by any reliable data. It is important to mention here that nowhere in the world, courts martial try terrorism related cases. It is true that the conviction rate by the criminal courts is low, but it does not mean that these courts do not have the will to do proper justice. The Supreme Court is routinely having judicial review of judgments of the fora below. We have observed that mostly acquittals are result of frivolous and politically motivated cases, flawed and unprofessional investigation, poor prosecution, inadequate or lack of witnesses. The present appeals have been filed by the Federal Government, the Government of Punjab and Government of Balochistan. Unfortunately, it seems that they have lost trust and confidence in the criminal courts. We are sorry to say that these elected governments instead of addressing the politically motivated and frivolous cases, improving the system of investigation, establishing a mechanism of collecting truthful witnesses and protecting them, providing workable atmosphere, protection to the judges and improving the judicial system, showed a no-confidence upon criminal courts and opted to burden the courts martial with such a huge responsibility. The military officers presiding the courts martial may be good at disposing military related matters, but they have no judicial expertise and experience to deal with criminal cases, with severe punishments. Courts martial cannot be considered at par with the judicial officers, who are not only law graduates but have the only function to deliver justice, with vast judicial experience at their credit. They are independent, impartial and without the influence, command and control of the executive. The Federal and the Provincial Governments instead of attending the causes for the terrorism and taking preventive measures before it happens, are trying to achieve its goal through courts martial, which is not a correct approach.
Expecting the ordinary criminal courts to convict persons without evidence and material, connecting them with the offence, would amount to violating the principle of natural justice, fair trial and due process. We are unable to understand that when the prosecution lacks evidence and there is no possibility of conviction of the accused, how can he be convicted by the courts martial?
We are confident that if the cases are properly investigated with solid proof, there is no reason, why the criminals will go Scot-free.
Fate of the Cases of Respondents/Accused before Courts Martial:
41. Out of the above titled appeals, some are filed by persons prosecuted by the courts martial.
Through an order dated 25.03.2024, we had permitted the courts martial to proceed with the trial, subject to the outcome of these appeals. Consequently, a number of accused were convicted and sentenced for different terms. Some of them have completed and undergone their sentences or some might have been acquitted of the charge. As we have concluded that the courts martial have no jurisdiction to try civilians, therefore, the convictions and sentences awarded by the courts martial to persons allegedly responsible for the occurrence of 9th May, 2023 are declared to be without jurisdiction, hence, the same are set aside.
These are the reasons for our short order dated 07.05.2025, which is reproduced herein below: 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 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.').
1. Para 2 of Chapter I of Part I of the Manual of Pakistan Military Law.
3. 2017 SCMR 1218
4. Private R v Cowen - [2020] HCA 31
6. F.B. Ali v. State (PLD 1975 SC 506)
7. PLD 1968 Peshawar 114
8. PLD 1957 SC (Pak) 9 at page 41.
9. Para 3 of Chapter I of Part I of the Manual of Pakistan Military Law.
10. PLD 1999 SC 504
11. PLD 1989 Kar. 404, upheld by SC in PLD 1994 SC 105
12. PLD 1993 SC 341
13. 2021 SCMR 1617
14. PLD 2013 SC 501
15. Law Office of Ghazi Suleiman v. Sudan, Comm. Nos. 222/98 and 229/99, Para 64, African Commission on Human and Peoples' Rights 2003
16. Ibid 15.
17. Human Rights Committee General Comment (HRGC) 32, "Article 14: Right to Equality before courts and tribunals and to a Fair Trial" (General Comments 32). U.N. DOC.CCPR/C/GC/32, Para 22.
18. Palamara-Iribarne v. Chile, judgement of the Intra-American Court of Human Rights, 22 November 2005, Paras. 124, 139, 269.
19. https://www.icj.org/wp-content/uploads/2025/05/Briefing-paper_Military-Justice-in- Pakistan.pdf
20. PLD 2007 SC 642
21. PLD 2013 SC 501
22. PLD 1988 SC 202
23. PLD 2001 SC 607
24. PLD 1989 SC 6
25. PLJ 2024 SC 114
26. C.P.1477 of 2023: https://www.supremecourt.gov.pk/downloads_judgements/c.p._1477_2023_20032025.pdf
27. PLD 1957 SC 157
28. 2017 SCMR 1218
29. PLD 2023 SC 661 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.