SHUHADA FORUM, BALOCHISTAN through Patron in Chief, Nawabzada Jamal Raisani, Quetta Cantt. vs Justice (R) JAWW

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SHUHADA FORUM, BALOCHISTAN through Patron in Chief, Nawabzada Jamal Raisani, Quetta Cantt. VS Justice (R) JAWWAD S. KHAWAJA Ss. 2(1)(d)(i), (ii) & 59(4)---International Covenant on Civil and Political Rights (ICCPR), Art. 14 (5)---Constitution of Pakistan, Arts. 2A, 8(3)(a), 9, 10, 10A, 19A, 25, 175(3), 227(1) & 245---Supreme Court Practice and Procedure Act (XVII of 2023), S. 5---Intra Court Appeal---Court Martial of civilians, vires of---Matter pertained to occurrence of 09-05-2023, whereby followers of a political party ransacked/attacked military installations situated in cantonment areas in different cities of Pakistan---Supreme Court in exercise of jurisdiction under Article 184(3) of the Constitution, declared the provisions of sections 2(1)(d)(i), (ii) & 59(4) of Pakistan Army Act, 1952 ultra vires the Constitution and of no legal effect---Validity---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---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---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---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---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---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---The trial of civilians by courts martial is in excess of the functions assigned to the Armed Forces by Article 245 of the Constitution---Convictions and sentences awarded to civilians by Courts Martial for the occurrence of 09-05-2023 were without jurisdiction and were set aside---Accused under custody were to be treated as under-trial prisoners and their cases would be transferred to concerned Courts of competent jurisdiction for trial---Upon receipt of cases, the concerned Courts should proceed with their trials expeditiously and decide the same at the earliest in accordance with law---Persons who had completed/undergone their sentences or had been acquitted of the charge by Courts Martial or Forum of Appeal under Pakistan Army Act, 1952, would have the effect of their discharge under section 169 Cr.P.C.---Intra Court Appeal was dismissed. [Minority view]

SHUHADA FORUM, BALOCHISTAN through Patron in Chief, Nawabzada Jamal Raisani, Quetta Cantt. vs Justice (R) JAWWAD S — 2025 PLD 482 SUPREME-COURT

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