JAWWAD S. KHAWAJA vs FEDERATION OF PAKISTAN Ss — 2024 PLD 337 SUPREME-COURT

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JAWWAD S. KHAWAJA VS FEDERATION OF PAKISTAN Ss. 2(1)(d)(ii) & 59(4)---Official Secrets Act (XIX of 1923), S. 2(8)---Constitution of Pakistan, Arts. 9, 10A, 25, 175(3) & 184(3)---Events of 9th and 10th May, 2023---Civilians accused of assault on military and defense installations; desecration of monuments commemorating martyrs of the nation; and ruination of the official residence of a Corps Commander---Decision of the Federal Government to conduct trials of such civilians by courts martial under the Pakistan Army Act, 1952---Non-applicability of section 2(1)(d)(ii) of the Pakistan Army Act, 1952 to such civilians---Held, that section 2(1)(d)(ii) of the Pakistan Army Act, 1952 ('the Army Act') would apply to an offence under the Official Secrets Act, 1923 which relates to any 'work' of the Armed Forces that has a direct and close nexus with the defence of Pakistan or to any 'affairs' of the Armed Forces that has such a nexus with the defence of Pakistan, and is committed with the intention or object of causing damage to the defence of Pakistan---Record of present case showed that these pre-requisites were missing in the case of the 103 civilian protesting perpetrators involved in the incidents of the 9th and 10th of May 2023---Furthermore there has been a pick and choose by the authorities, in referring the cases for the trial of 103 civilian protesting perpetrators before the court martial under the Army Act---Detailed reasons for finding that the provisions of section 2(1)(d)(ii) of the Pakistan Army Act, 1952 were not applicable to the civilian protesting perpetrators involved in the incidents of the 9th and 10th of May 2023 stated. [Minority view] Citation Name: 2024 PLD 337 SUPREME-COURTBookmark this Case JAWWAD S. KHAWAJA VS FEDERATION OF PAKISTAN Past and closed transaction, doctrine of---Concept of past and closed transactions was evolved to safeguard accrued and vested rights of parties under a statute which subsequently was found and declared to be ultra vires the Constitution. Citation Name: 2024 PLD 337 SUPREME-COURTBookmark this Case JAWWAD S. KHAWAJA VS FEDERATION OF PAKISTAN art. 8(3)(a)---Laws inconsistent with or in derogation of fundamental rights to be void---Exceptions---Restrictive interpretation---Given the drastic consequences that flow from it, article 8(3)(a) of the Constitution must be given a narrow and restricted meaning and application. Citation Name: 2024 PLD 337 SUPREME-COURTBookmark this Case JAWWAD S. KHAWAJA VS FEDERATION OF PAKISTAN arts. 8(5) & 8(3)(a)---Fundamental Rights in the Constitution not to be suspended except as expressly provided by the Constitution---Protection afforded by article 8(5) of the Constitution---Scope---Such protection is not just when a breach has actually occurred; it is also anticipatory, i.e., it acts to prevent a breach occurring at all in the first place---In an appropriate context, even before the situation has reached the point where the claimant has to show a denial of or derogation from this or that fundamental right, clause (5) of article 8 is there---That context includes the situation where it can be shown that either the purpose or effect of the impugned action (whether a law or otherwise) would be to displace fundamental rights---In this sense it can even be regarded as preceding clauses (1) and (2) of article 8---Clause (5) of article 8 approaches, and protects, fundamental rights in a collective sense---While it would certainly be engaged even if a single fundamental right is, in effect, placed in a state of suspension (or worse) contrary to what is permissible, its real substance and power is revealed when one takes a step back and looks at fundamental rights as a whole---Reason is that when the clause is so engaged, it is not necessary to identify a specific fundamental right that is being affected---If it can be shown that the whole panoply of rights is being, or would be, placed, either actually or potentially, in a state of suspension (or worse) that suffices---Indeed, on such analysis even if it is shown that one or more fundamental rights are not suspended or denied or derogated from, that would not matter---Clause (5) of article 8 locks in its embrace the aggregate of fundamental rights, without any need for differentiating between individual rights, an exercise that is invariably necessary when a law is being tested on the touchstone of clauses (1) and (2) of article 8---No law, whether existing or one minted under the present Constitution, can defeat the protections provided by clause (5) of article 8---For persons other than the three categories of State employees specified in article 8(3)(a), and especially in relation to civilians, any and every existing law claiming to be within the contemplation of the said provision must pass through the sieve of clause (5) of article 8 and also, if so required, be tested on the anvil of any violation of a particular and specified fundamental right---Sieve of article 8(5) applies equally to an existing law or one sought to be made under the Constitution. Citation Name: 2024 PLD 337 SUPREME-COURTBookmark this Case JAWWAD S. KHAWAJA VS FEDERATION OF PAKISTAN arts. 10a, 14(1) & 25(1)---Right of human dignity---Correlation with right to fair trial and due process---One of the most compelling human values recognized as a fundamental principle is the right of human dignity which actually constitutes the basis of all fundamental rights and encapsulates the right to fair trial, justice and equality---When this fundamental principle is declared as a fundamental right its significance increases as it signifies the manner in which rights, norms, state practices and the law should be implemented and prescribes the limits---State's duty to secure human dignity is the lynchpin as it forms the bedrock upon which all fundamental rights stand---Fundamental right to dignity acts as a compass that orients people and state functionaries in all their actions---Consequently, as a fundamental right it becomes a matter of judicial interpretation to determine whether executive decisions or legislative enactment have encroached upon these rights---It places a positive obligation on the State and requires it at all times that it protects and enforce the rights of the people so as to maintain their dignity---Right to dignity lends real meaning to human rights as it is inherent in every right protected by international human rights law---Therefore, when the right to fair trial and due process is invoked, so is the right to dignity which right under the Constitution is inviolable---article 10a of the Constitution fortifies this right to fair trial and due process which is an essential requirement of human dignity. Citation Name: 2024 PLD 337 SUPREME-COURTBookmark this Case JAWWAD S. KHAWAJA VS FEDERATION OF PAKISTAN Ss. 2(1)(d)(i), 2(1)(d)(ii) & 59(4)---Constitution of Pakistan, Arts. 8(3)(a), 8(5), 9, 10A, 184(3) & 233---Criminal Procedure Code (V of 1898), S. 549---Events of 9th and 10th May, 2023---Civilians accused of assault on military and defense installations; desecration of monuments commemorating martyrs of the nation; and ruination of the official residence of a Corps Commander---Decision of the Federal Government to conduct trials of such civilians by courts martial under the Pakistan Army Act, 1952---Constitutionality---Sections 2(1)(d) and section 59(4) of the Pakistan Army Act, 1952 were ultra vires the Constitution, with reference and regard to Articles 8(5) and 10A of the Constitution---Fate of the section 59(4) of the Pakistan Army Act, 1952 was tied to section 2(1)(d) of the same Act; the two would stand and fall together, and since section 2(1)(d) failed, so must section 59(4)---Even when the Constitution was operating under a Proclamation of Emergency, and even if that Proclamation was "bolstered" by an Order under Article 233(2), sections 2(1)(d) and section 59(4) of the Pakistan Army Act, 1952 would be, and remain, ultra vires the Constitution, on account of the continued protection provided by Article 8(5)---In the present case manner in which around 103 accused persons were handed over to the Army authorities by the Anti-Terrorism Courts (ATCs) on the applications made by Army authorities under section 549, Cr.P.C. was unlawful---Not only could the Army authorities not have filed any applications under section 549, Cr.P.C. but the same could not even be entertained by the ATCs---There was a double lack of jurisdiction---Manner in which the 103 persons were dealt with was therefore contrary to law and hence a violation of Articles 9 and 10A of the Constitution---Detailed reasons, declarations and directions issued by the Supreme Court in the present matter stated. Citation Name: 2024 PLD 337 SUPREME-COURTBookmark this Case JAWWAD S. KHAWAJA VS FEDERATION OF PAKISTAN Ss. 2(1)(d)(i), 2(1)(d)(ii), 59(4), 133 & 133B---Pakistan Army Act Rules, 1954, Rr. 13(5), 23(1), 26 & 51---Constitution of Pakistan, Arts. 4, 9, 8(1), 8(2), 8(3)(a), 8(5), 10A, 14(1), 175 & 184(3)---Criminal Procedure Code (V of 1898), S. 549---Events of 9th and 10th May, 2023---Civilians accused of assault on military and defense installations; desecration of monuments commemorating martyrs of the nation; and ruination of the official residence of a Corps Commander---Decision of the Federal Government to conduct trials of such civilians by courts martial under the Pakistan Army Act, 1952---Constitutionality---Concept of a civilian facing military trial is violative of the fundamental right of fair trial and due process---There is a lack of impartiality and independence within a military trial and the concept of fairness and due process is missing from the procedure---Trial of a citizen by a military court for an offence which can be tried before the ordinary courts established under Article 175 of the Constitution offends the principles of independence of the judiciary and of fair trial---Decision of the Federal Government to try civilians before military courts totally defies the constitutional command and is in derogation to the rights contained in Articles 4, 9, 10A, and 14 read with Article 175 of the Constitution---Article 8(3)(a) of the Constitution specifically applies to members of the Armed Forces and laws related to them and the argument that a person can be deprived of any of their fundamental rights especially the right to fair trial and due process because they have been made otherwise subject to the Army Act would mean that the Constitutional guarantee of fundamental rights can be taken away by ordinary legislation---This would totally defeat the purpose of Articles 8(1), 8(2) and 8(5) of the Constitution---In the present case none of the 103 persons detained were reported for offences under the Official Secrets Act, 1923, yet applications were made under Section 549 Cr.P.C. for their delivery to military authorities---Sections 2(1)(d) and 59(4) of the Pakistan Army Act, 1952 were ultra vires the Constitution---Detailed reasons for declaring Sections 2(1)(d) and section 59(4) of the Pakistan Army Act, 1952 as ultra vires the Constitution stated. Citation Name: 2024 PLD 337 SUPREME-COURTBookmark this Case JAWWAD S. KHAWAJA VS FEDERATION OF PAKISTAN Ss. 2(1)(d)(i), 2(1)(d)(ii) & 59(4)---Constitution of Pakistan, Arts. 4, 10A & 184(3)---Events of 9th and 10th May, 2023---Civilians accused of assault on military and defense installations; desecration of monuments commemorating martyrs of the nation; and ruination of the official residence of a Corps Commander---Constitutional petitions filed before the Supreme Court challenging the decision of the Federal Government to conduct trials of such civilians in military courts under the Pakistan Army Act, 1952---Maintainability---Constitutional values of fair trial, due process, independence of the judiciary and access to justice have to be considered in the context of the trial of civilians before a military court---In the same context, the issues raised in the present petitions are of serious concern to the citizens of the country given that they directly relate to the enforcement of their fundamental rights being the right to fair trial and due process by an independent and impartial court as guaranteed under the Constitution---Consequently, the issues raised unequivocally fall within the original jurisdiction of the Supreme Court under Article 184(3) of the Constitu-tion---Constitutional petitions were maintainable. Citation Name: 2024 PLD 337 SUPREME-COURTBookmark this Case JAWWAD S. KHAWAJA VS FEDERATION OF PAKISTAN arts. 184(3) & 199---Constitutional remedy---Forum---Supreme Court or the High Court?---Choice of petitioner---Opening words of article 184(3) of the Constitution without prejudice to the provisions of article 199 means that it is for the party who is affected to choose which of the two forums it wishes to invoke being either before the High Court or the Supreme Court---However scope of jurisdiction and exercise of power by the Supreme Court under article 184(3) of the Constitution is not bound by the procedural trappings of article 199 of the Constitution nor its limitation for the exercise of power by the High Court---Provisions of article 184(3) of the Constitution are self contained and they regulate the jurisdiction of the Supreme Court on its own terminology such that it is not controlled by the provisions of article 199 of the Constitution---Plain language of article 184(3) of the Constitution shows that it is open ended as it does not stipulate who has the right to move the Supreme Court nor does it require that the enforcement of fundamental rights must relate to a large group or class of persons rather the only requirement is that the test of public importance for the enforcement of fundamental rights be met with. Citation Name: 2024 PLD 337 SUPREME-COURTBookmark this Case JAWWAD S. KHAWAJA VS FEDERATION OF PAKISTAN Ss. 2(1)(d)(i), 2(1)(d)(ii) & 59(4)---Constitution of Pakistan, Arts. 9, 10A, 25, 175(3) & 184(3)---Events of 9th and 10th May, 2023---Civilians accused of assault on military and defense installations; desecration of monuments commemorating martyrs of the nation; and ruination of the official residence of a Corps Commander---Decision of the Federal Government to conduct trials of such civilians by courts martial under the Pakistan Army Act, 1952---Constitutionality---In the case reported as Brig. (Rtd.) F.B. Ali v. State PLD 1975 SC 506 ('F.B. Ali case'), sections 2(1)(d)(i) & (ii) and 59(4) of the Pakistan Army Act, 1952 ('Army Act') were adjudged to be intra vires the (1962) Constitution---The F.B. Ali case was decided by a Bench of five Judges, a Bench co-equal in numeric strength to that of the present Bench, therefore, the present Bench was bound by the view taken in F.B. Ali case on the constitutional validity of sections 2(1)(d)(i) & (ii) and 59(4) of the Army Act---Definite findings on 'fair trial' under the Army Act, expressed in the F.B. Ali case, were later referred to and relied upon in several cases before the Supreme Court that followed---Further in none of these cases it was found that the law declared in the F.B. Ali case was no longer a good law, or for that matter, has lost its efficacy. [Minority view] Citation Name: 2024 PLD 337 SUPREME-COURTBookmark this Case JAWWAD S. KHAWAJA VS FEDERATION OF PAKISTAN art. 10a---Right to fair trial---Scope and essential ingredients---Basic ingredients for a fair trial in the light of article 10a of the Constitution are that there should be an independent, impartial court, a fair and public hearing, right of counsel, right to information of the offence charged for with an opportunity to cross examine witnesses and an opportunity to produce evidence---It also includes the right to a reasoned judgment and finally the remedy of appeal---Hence, the ultimate objective is to ensure fairness in the process and proceedings and fairness itself being an evolving concept cannot be confined to any definition or frozen at any moment, with certain fundamentals which operate as constants---Independence of the decision maker and their impartiality is one such constant---a reasoned judgment before a judicial forum is another constant without which the right to fair trial would become meaningless---Right of an independent forum of appeal is another relevant constant which ensures fair trial. Citation Name: 2024 PLD 337 SUPREME-COURTBookmark this Case JAWWAD S. KHAWAJA VS FEDERATION OF PAKISTAN Ss. 2(1)(d)(i), 2(1)(d)(ii) & 59(4)---Constitution of Pakistan, Arts. 8(3)(a), 8(5), 9, 10A & 184(3)---Events of 9th and 10th May, 2023---Civilians accused of assault on military and defense installations; desecration of monuments commemorating martyrs of the nation; and ruination of the official residence of a Corps Commander---Constitutional petitions filed before the Supreme Court challenging the decision of the Federal Government to conduct trials of such civilians by courts martial under the Pakistan Army Act, 1952---Maintainability---Determination in the present petitions was the denial, through Article 8(3)(a) of the Constitution, of fundamental rights as protected by Article 8(5)---That provision protects all fundamental rights---Therefore, present petitions involved and, in effect, sought the enforcement of all fundamental rights---Of these, two in particular had also been found involved specifically, being Articles 9 and 10A---Without doubt the questions raised in the present petitions were of public importance---Thus, both the conditions required for invoking the jurisdiction of the Supreme Court in terms of Article 184(3) were met---Finally, the rules of standing in relation to the jurisdiction of the Supreme Court are much more relaxed and liberal as, e.g., compared to corresponding requirements in relation to Article 199---There could be no doubt regarding the standing of the petitioners to file present petitions and bring the very serious questions of fundamental constitutional importance identified by them before the Court---Constitutionals petitions were held to be maintainable. Citation Name: 2024 PLD 337 SUPREME-COURTBookmark this Case JAWWAD S. KHAWAJA VS FEDERATION OF PAKISTAN Ss. 2(1)(d)(i), 2(1)(d)(ii) & 59(4)---Constitution of Pakistan, Arts. 4, 10A, 184(3) & 199---Events of 9th and 10th May, 2023---Civilians accused of assault on military and defense installations; desecration of monuments commemorating martyrs of the nation; and ruination of the official residence of a Corps Commander---Constitutional petitions filed before the Supreme Court challenging the decision of the Federal Government to conduct trials of such civilians in military courts under the Pakistan Army Act, 1952---Maintainability---Question raised in the present petitions, as to the constitutional validity of the military trial of civilians, is definitely one of public importance and with reference to the enforcement of the fundamental right of access to justice enshrined in the right to life and liberty guaranteed by Article 9 of the Constitution---Present petitions, thus, fulfill the two conditions precedent for invoking the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution---Furthermore no case with similar subject matter is pending before any of the High Courts under Article 199 of the Constitution---Authority of the Supreme Court to hear the present matter could not be stultified only because the petitioners had an alternative remedy before the High Court---Present constitutional petitions were, thus, maintainable.

JAWWAD S. KHAWAJA vs FEDERATION OF PAKISTAN Ss — 2024 PLD 337 SUPREME-COURT

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