Summary: (a) Constitution of Pakistan ---- Arts. 4, 9, 10A, 14 & 25 --- Reinstatement of civil servant following unlawful compulsory retirement or removal from service --- Back benefits --- Doctrine of constructive continuity --- Scope and applicability. Supreme Court formally recognized and articulated the “doctrine of constructive continuity” in the context of service jurisprudence, holding that once a dismissal, removal, or compulsory retirement of a civil servant is declared unlawful, the individual shall be deemed to have remained in continuous service for all legal and financial purposes. This includes entitlement to full salary, allowances, increments, and pensionary rights, subject to lawful deductions or any substituted penalty. The Court emphasized that reinstatement must restore not only the position but also the economic status quo ante, and denial of back benefits, despite legal vindication, violates constitutional guarantees under Arts. 4, 9, 10A, 14, and 25. The judgment held that reliefs granted in such reinstatement cases are not discretionary but flow from the principles of fairness, legal restoration, and institutional integrity. Denial of back benefits was held to be legally and constitutionally unsustainable where reinstatement followed a finding of disproportionality in punishment or procedural irregularity without evidence of gainful employment during the intervening period. Cited Cases: • Muhammad Sharif v. Inspector General of Police, Punjab 2021 SCMR 962 • Inspector General of Police, Punjab v. Tariq Mahmood 2015 SCMR 77 • Chairman State Life v. Siddiq Akbar 2013 SCMR 752 • Umer Said v. District Education Officer (Female) 2007 SCMR 296 • Superintendent of Police v. Ijaz Aslam 2024 SCMR 1831 • Vice Chancellor Agriculture University v. Muhammad Shafiq 2024 SCMR 527 • Pakistan Peoples Party Parliamentarians v. Federation of Pakistan PLD 2022 SC 574 • Secretary, Government of Punjab v. Khalid Hussain Hamdani 2013 SCMR 817 (b) Service laws --- Punjab Civil Servants Act, 1974, S. 16 (second proviso) --- Determination of arrears of pay --- Scope and limits of discretion. The Supreme Court clarified that the discretion granted under the second proviso to S.16 of the Punjab Civil Servants Act, 1974 to determine arrears of pay upon reinstatement must be exercised in line with constitutional rights and settled judicial principles. Where the foundational order of dismissal or removal is found to be unlawful, the denial of arrears becomes impermissible. The Court held that the financial entitlements arising from reinstatement should reflect the modified or substituted penalty retrospectively, and the intervening period must be regularized to preserve pension, seniority, and other ancillary benefits. (c) Administrative law --- Constructive continuity --- Judicial recognition --- Doctrine introduced for coherence and consistency in reinstatement cases. The Court coined and introduced the doctrine of “constructive continuity” for the first time in Pakistani jurisprudence, drawing upon comparative principles such as the doctrine of “vanishing dismissal” from the United Kingdom. The Court held that constructive continuity ensures that reinstatement is not a hollow relief but one that fully restores the civil servant’s legal and service-related status, thereby offering a principled framework for future cases involving wrongful termination or disproportionate penalties. (d) Constitution of Pakistan --- Arts. 4 & 25 --- Proportionality and non-discrimination --- Substitution of penalty --- Effect on back benefits. Where a disciplinary penalty is found disproportionate and substituted with a lesser penalty, such as forfeiture of service years or censure, the substituted penalty must be treated as if it had been imposed ab initio. In such cases, denial of back benefits was held to be violative of the principles of proportionality and non-discrimination under Arts. 4 and 25 of the Constitution. The civil servant is entitled to service-related financial entitlements corresponding to the lesser penalty imposed. (e) C.P.L.A. No. 3453-L/2019 --- Compulsory retirement modified to forfeiture of two years of service --- Reinstatement ordered --- Intervening period treated as special casual leave without pay --- Legality. The petitioner, a Head Constable, was compulsorily retired but subsequently reinstated with a substituted penalty. No evidence was presented to suggest gainful employment during the intervening period, nor was reinstatement conditional. The Court held that denial of back benefits was unwarranted and violated constitutional guarantees. The impugned judgment was modified to grant full back benefits, subject to the modified penalty, from the date of original removal. (f) C.P.L.A. No. 23-L/2022 --- Removal from service for unauthorized absence --- Penalty modified to forfeiture of three years’ service --- Denial of back benefits --- Validity. The Tribunal found the original penalty of removal disproportionate and reinstated the petitioner with a substituted penalty. The Supreme Court held that denial of all back benefits despite the finding of disproportionality was unjustified. Petitioner was entitled to back benefits subject to the reduced penalty. The impugned judgment was accordingly modified. Disposition: Petitions converted into appeals and partially allowed. Impugned judgments modified to grant full back benefits to both petitioners, subject to their respective substituted penalties.

Summary: (a) Constitution of Pakistan ----Art. 189 Binding effect of Supreme Court decisions—Larger Bench re-examined the correctness of the principles laid down in Collector of Sales Tax v. Super Asia Mohammad Din 2017 SCMR 1427 concerning time limits under indirect tax statutes—Court affirmed that findings in Super Asia applied not only to the Sales Tax Act, 1990 but also to similar provisions in the Customs Act, 1969 and Federal Excise Act, 2005, in view of their virtually identical language—Held, principles laid down in Super Asia have broader binding effect under Art. 189 of the Constitution. (b) Sales Tax Act, 1990 ----S. 11(5) [pre-2024], S. 11G(2) [post-2024] Assessment—Time limitation for passing adjudication order—Mandatory nature—Show cause notice under S. 11 must culminate in an adjudication order within 120 days or extended period not exceeding 90 days—Larger Bench held that both the original 120-day and the 90-day extended periods were mandatory—Failure to comply renders the adjudication order invalid—Statutory phrase “shall… in no case exceed ninety days” was held to convey a conclusive and unbreachable limit. (c) Sales Tax Act, 1990 ----S. 74 Condonation of delay—Scope and limitation—Held, S. 74 grants discretionary power to FBR to condone delay in “appropriate” cases—However, the term “appropriate” must be interpreted objectively and not open-ended—Super Asia rightly imposed a 6-month ceiling to ensure clarity and avoid arbitrary or prolonged extensions—Court reaffirmed that any extension beyond 6 months is impermissible. (d) Sales Tax Act, 1990 ----S. 36 (repealed) Historical legislative context—Court observed that insertion of time-bound adjudication clauses in 2000 through amendment of S. 36 indicated legislative intent to restrict discretion and avoid prolonged proceedings—Held, the use of “shall” coupled with negative phrasing “in no case” indicated a mandatory character—Court rejected arguments that absence of penal consequences implied a directory provision. (e) Interpretation of Statutes ----Mandatory vs. Directory provisions—Test—Court reaffirmed that ascertainment of legislative intent is key in determining whether a provision is mandatory—Use of “shall” may be read as “may” in limited cases, but only when context allows—Where legislative language contains hard prohibitory terms (“in no case”), interpretation as mandatory is justified—Court concluded that allowing directory reading would render Commissioner’s power to grant extension redundant. (f) Statutory Adjudication and Fiscal Due Process ----Protection of taxpayers—Larger Bench emphasized that layered statutory deadlines serve to protect taxpayers from harassment or indefinite proceedings—Held, adjudicating officers are bound by strict timelines to ensure transparency and fairness—State functionaries must conclude proceedings expeditiously or lose the legal authority to decide the matter—Prolonged pendency of adjudication beyond statutory deadlines defeats due process. (g) Judicial Precedent ----Super Asia case (2017 SCMR 1427)—Reaffirmed—Court held that observations in later referral order (Wak Ltd. v. Collector Central Excise, 2018 SCMR 1474) were misconceived—No contradiction found in Super Asia regarding S. 74—Appeals and review petitions seeking reconsideration of Super Asia principles were dismissed. Cited Cases: • Collector of Sales Tax v. Super Asia Mohammad Din 2017 SCMR 1427 • Abbasi Enterprises v. Collector of Sales Tax 2019 SCMR 1989 • Commissioner IR v. Sarwaq Traders 2025 SCMR 341 • A.J. Traders v. Collector of Customs PLD 2022 SC 817 • Mujahid Soap Industries v. Customs Tribunal 2019 SCMR 1735 • Federal Land Commission v. Rais Habib Ahmed PLD 2011 SC 842 • Commissioner IR v. Yasmeen Bano 2020 SCMR 1120 Disposition: Super Asia principles declared correct; all connected appeals and review petitions were remitted for decision in light of this judgment. Review petitions dismissed.

Summary: (a) Constitution of Pakistan ----Art. 199(1)(a)(ii)—Jurisdictional limits—High Court’s powers in writ jurisdiction—Concurrent findings of fact—Proper course of action—Scope and limits of judicial review High Court, while exercising Constitutional jurisdiction under Art. 199(1)(a)(ii), cannot act as a Court of facts or substitute its own findings for those of Courts or Tribunals below—In the case at hand, the High Court allowed a writ petition against concurrent judgments of the Family Court and appellate Court that had dismissed a suit for recovery of dower—High Court set aside those judgments and went further to decree the suit itself—Such substitution of findings and issuance of a decree was held to be beyond its jurisdiction—While High Court may interfere where findings are based on misreading or non-reading of material evidence, the proper remedy is remand, not adjudication on merits—Exercise of certiorari does not permit arrogation of trial court powers. Cited Cases: • Azmat Ali v. Chief Settlement and Rehabilitation Commissioner PLD 1964 SC 260 • Nawaza v. Additional Settlement and Rehabilitation Commissioner PLD 1970 SC 39 • Shabbir Hussain v. Muhammad Afzal 1972 SCMR 47 • Muhammad Younus Khan v. Government of N.-W.F.P. 1993 SCMR 619 (b) Family Law ----Recovery of dower—Gift deed and tamleeq nama as proof—Standard of proof—Relaxed application of procedural law—Evidentiary standard in family cases Respondent-wife based her claim for recovery of dower not on entries in the nikah nama but on the basis of a gift deed and tamleeq nama allegedly executed by her father-in-law in favour of her husband and by her husband in her favour—Family Court and appellate Court concurrently held that execution of such deeds was not proved—High Court, however, set aside those findings, holding that procedural laws like the Qanun-e-Shahadat Order, 1984 and CPC are not strictly applicable in family disputes—Testimonies of witnesses and admission by petitioner No.1 were considered sufficient to establish execution—Supreme Court declined to interfere with the High Court’s setting aside of the concurrent judgments but held that decreeing the suit on its own exceeded jurisdiction—Matter remanded to Family Court for decision afresh. Disposition: Leave to appeal granted to the extent of High Court’s act of decreeing the suit—Appeal allowed to that extent—Impugned judgment set aside partially—Case remanded to Family Court for decision afresh—Stay application dismissed as infructuous.

Summary: (a) Constitution of Pakistan—Art. 225—Elections Act, 2017, Ss. 144(4), 145—Code of Civil Procedure, 1908 (V of 1908), O.VI, R.15 & S.139—Election dispute—Maintainability—Verification of election petition—Mandatory requirement—Scope—Jurisdiction of Tribunal—Nature—Effect of non-compliance. Challenge was made to election results for PP-167 (Lahore-XXIII), alleging corrupt practices and manipulation of Forms-45—Election Tribunal rejected the petition due to procedural defects in its filing—Supreme Court held that election disputes must strictly comply with the Elections Act, 2017, which operates as a self-contained code under Art. 225 of the Constitution—Filing and verification requirements under Ss. 144(4) & 145 of the Elections Act, read with O.VI, R.15 CPC, were found to be mandatory and not procedural formalities—Failure to provide valid verification under oath rendered the petition defective—Verification lacked proper attestation by the Oath Commissioner; petitioner was not identified by CNIC or in person, and the rubber stamp lacked clarity about the oath’s administration—Such procedural non-compliance, having penal consequences, vitiated the petition—Jurisdiction of the Election Tribunal being statutory and exceptional, strict adherence to legal formalities was imperative—Held, the election petition was rightly rejected by the Tribunal for non-compliance with statutory requirements. Cited Cases: • Zafar Abbas v. Hassan Murtaza (PLD 2005 SC 600) • Inayatullah v. Syed Khursheed Ahmed Shah (2014 SCMR 1477) • Hina Manzoor v. Malik Ibrar Ahmed (PLD 2015 SC 396) • Lt.-Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana (2015 SCMR 1585) • Feroze Ahmed Jamali v. Masroor Ahmad Khan Jatoi (2016 SCMR 750) • Muhammad Ibrahim Jatoi v. Aftab Shaban Mirani (2016 SCMR 722) • Malik Umar Aslam v. Sumera Malik (PLD 2007 SC 362) • Zia Ur Rehman v. Syed Ahmed Hussain (2014 SCMR 1015) Disposition: Appeal dismissed.

Summary: (a) Contract Act, 1872 —- Ss. 2(g), 13, 14 — Constitution of Pakistan, Art. 185(2)(d) Contract executed under police custody — Validity — Free consent — Burden of proof — Legal consequence — Agreement dated 04.12.2015 executed by Altaf Hussain, predecessor of respondents No.1 to 6, while in police custody in connection with FIR No.161/2015 — Held, transaction was executed under circumstances of duress and lacked free consent, rendering the agreement void under S. 2(g) of the Contract Act, 1872 — Under Ss. 13 and 14 of the Act, consent must be free and not induced by coercion, undue influence, fraud, misrepresentation or mistake — Agreement was executed while Altaf Hussain was under arrest, in physical custody of law enforcement, and prior to his grant of post-arrest bail — Burden lay on the appellants to prove that transaction was entered into voluntarily, which they failed to discharge — No evidence produced to show that consideration was paid or benefit received by respondents — Held, where an agreement is executed in custody and there is dominance of will, such consent is presumed vitiated. Cited Cases: • Mst. Hamida Begum v. Mst. Murad Begum (PLD 1975 SC 624) • Pakcom Ltd. v. Federation of Pakistan (PLD 2011 SC 44) • Pak Gulf Construction Co. v. MCB, Quetta Branch (2001 SCMR 265) (b) Evidence Law — Coercion — Undue Influence — Legal burden — Contractual presumption Presumption against voluntariness — Agreement by accused while in custody — Evidentiary threshold — Held, a person in police custody is presumed to be in a vulnerable state and particularly susceptible to coercion or undue influence — Where a contract is executed under such circumstances, courts must scrutinize the existence of free consent and consensus ad idem — Unless the party relying on the document proves that the transaction was fair, informed, and voluntary, such contracts are presumed invalid — No material produced by the appellants to prove that transaction was not influenced by duress or coercion — Agreement dated 04.12.2015 was therefore rightly held void. (c) Agency — Termination on death — General Power of Attorney — Posthumous execution — Legal validity Termination of agency on death — Effect of acts performed after death of principal — General Power of Attorney in favour of respondents No.1 to 6 stood terminated upon the death of Salma Sultana on 13.01.1999 — Mutation No.926 and all subsequent transactions based on agency post-death were void ab initio — Held, any action taken under terminated authority has no legal effect — High Court rightly restored Mutation No.428 and cancelled void mutation based on invalid agreement. Statutory Reference: Agency under general principles of the Contract Act and civil jurisprudence is extinguished upon death of principal. (d) Civil Procedure — Challenge to mutation — Delay — Legal consequence Timing of challenge — Mutation challenged within limitation — Delay not fatal — Appellant contended that challenge to Mutation No.926 was delayed and hence invalid — Held, suit was filed within prescribed limitation period — Delay in filing not sufficient to cure an inherently void transaction — Mere lapse of time does not validate a void agreement — Trial and appellate courts rightly found agreement void; High Court lawfully reversed lower findings based on legal scrutiny and evidentiary evaluation. (e) Constitution of Pakistan — Art. 185(2)(d) Appeal to Supreme Court — Scope of interference in concurrent factual findings — Standard of review — Held, where High Court judgment is based on correct legal principles and appreciation of evidence, Supreme Court does not interfere under Art. 185(2)(d) — Findings of High Court that agreement was void due to duress and agency had terminated were supported by record — Civil appeal dismissed. Final Disposition: Appeal dismissed. Judgment of High Court upheld. Agreement dated 04.12.2015 declared void and Mutation No.926 set aside; original Mutation No.428 restored.

Summary: (a) Income Tax Ordinance, 2001 ----Ss. 122(5A), 174(1), 174(3)—Retention of tax records—Scope of limitation—Pending proceedings—Applicability of proviso to S.174(3) Where tax proceedings are pending, taxpayer's statutory obligation to retain records under S.174(1) extends beyond six years by virtue of the proviso to S.174(3)—Petitioner department issued show-cause and passed re-assessment order within five-year window from deemed assessment for tax year 2010—Subsequent proceedings, including appeal and writ petition, remained pending thereafter—Held, Lahore High Court erred in granting blanket protection from production of record by relying solely on lapse of retention period—Explanation to S.174(3), inserted by Finance Act, 2010, explicitly extends record-keeping duty where any proceeding (assessment, appeal, revision, reference, petition, or prosecution) remains sub judice—Effect of limitation under S.174(1) diluted where proceedings initiated within time—Taxpayer’s failure to retain record amid ongoing litigation contravened statutory obligation. Cited Cases: • Maple Leaf Cement Factory Ltd. v. FBR (2016 PTD 2074) (distinguished) • Commissioner Inland Revenue v. Panther Sports and Rubber Industries (Pvt) Ltd. (2022 SCMR 1133) (relied) (b) Constitutional Petition—High Court's interference in audit proceedings—Judicial restraint High Court allowed writ petition against audit notice issued under S.122(5A), restraining tax authorities from demanding records—Held, while audit may proceed, taxpayer cannot avoid production of documents merely on lapse of six-year period if proceedings remain pending—Court below failed to appreciate scope and effect of proviso to S.174(3)—Such judicial intervention curtailed legitimate statutory functions of tax authorities. Disposition: Civil Petition converted into appeal and allowed to the extent of record production—Impugned order of High Court set aside partially—Department’s power to demand records during pending proceedings upheld.

Summary: (a) Constitution of Pakistan — Arts. 8(3), 8(5), 10-A, 175 & 268 — Pakistan Army Act (XXXIX of 1952), Ss. 2(1)(d)(i) & (ii), 59(4) — Vires of law — Trial of civilians by military courts — Scope and validity. Majority judgment under Art. 184(3) had declared the impugned provisions of the Army Act unconstitutional; however, upon intra-court appeal, the Supreme Court restored Ss. 2(1)(d)(i) & (ii) and 59(4). Justice Mazhar held that the authority to try persons “not otherwise subject” to the Act is confined to limited offences, namely sedition, abetment of desertion, or espionage under the Official Secrets Act, 1923, having a direct nexus with military affairs. The earlier declaration of invalidity misconstrued Art. 8(5), which merely prevents suspension of fundamental rights during a constitutional emergency and cannot be invoked to annul existing laws protected by Art. 268. Courts-martial, being part of a distinct military-justice system traceable to Entry No. 1, Federal Legislative List, fall outside Art. 175(3) separation-of-powers framework. Held, the Army Act provisions are intra vires and constitutionally sustainable. Cited Cases: F.B. Ali v. The State PLD 1975 SC 506; Benazir Bhutto v. Federation PLD 1988 SC 416; Dr. Mobashir Hasan v. Federation PLD 2010 SC 265; Sui Southern Gas Co. Ltd. v. Federation 2018 SCMR 802; LDA v. Imrana Tiwana 2015 SCMR 1739. (b) Intra-Court Appeal — Supreme Court (Practice and Procedure) Act (2023), S. 5 — Nature and scope. Right of intra-court appeal against orders under Art. 184(3) is a substantive vested right, not a procedural formality. It enables the larger bench to affirm, modify, or vacate the earlier decision and ensures correction of legal or constitutional errors within the Supreme Court’s own jurisdiction. The remedy parallels a letters-patent appeal but is sui generis and integral to the constitutional guarantee of due process under Art. 10-A. Judicial propriety requires that while the Court is one, benches are functional divisions; therefore, ICA proceedings constitute continuation of the original jurisdiction, not an appeal from a subordinate court. (c) Interpretation of statutes — Doctrine of reading down — Presumption of constitutionality. A statute must be preserved if reasonably possible. Courts are bound to lean in favour of validity unless the law is ex facie violative of the Constitution. “Reading down” should be used to sustain functionality, not to destroy legislative intent. Judiciary cannot legislate; its duty is to interpret purposively and uphold Parliament’s objective. Article 8(3) permits special laws governing the armed forces for discipline and proper discharge of duty; therefore, S. 2(1)(d) and S. 59(4) fall within this constitutional exception. Cited Cases: Province of Sindh v. M.Q.M. PLD 2014 SC 531; Delhi Transport Corp. v. D.T.C. Mazdoor Congress AIR 1991 SC 101; Baz Muhammad Kakar v. Federation PLD 2012 SC 923; Province of E. Pakistan v. Siraj-ul-Haq Patwari PLD 1966 SC 854; Ellahi Cotton Mills v. Federation PLD 1997 SC 582. (d) Fair trial and due process — Art. 10-A — Courts-martial procedure — Right of appeal. Right to fair trial existed in procedural law long before Art. 10-A; its constitutional incorporation reinforced, but did not originate, the guarantee. The Army Act and Cr.P.C. collectively ensure fair-trial safeguards—e.g., S. 112 (rules of evidence identical to criminal courts) and S. 133-B (appeal before a Court of Appeals). Moreover, convicted persons now enjoy an independent statutory appeal to High Courts against convictions, consistent with Art. 10-A. Thus, allegations that military justice inherently denies fair trial are unfounded. (e) Delivery of accused to military authorities — Criminal Procedure Code (1898), S. 549 — Concurrent jurisdiction of civil and military courts. Section 549 Cr.P.C. authorizes transfer of custody to military authorities when the offence is triable by court-martial, but such discretion must be exercised by a reasoned, speaking order ensuring satisfaction that the case genuinely falls within military jurisdiction. Pending writs challenging Anti-Terrorism Court transfer orders are to be decided independently by respective High Courts on their own merits. (f) Doctrine of coordinate bench and judicial discipline — Binding precedent. Justice Mazhar endorsed the principle that co-equal benches cannot overrule each other; departures must be by larger benches. However, unlike the dissent of Afridi J., he viewed the ICA’s broader bench as constitutionally competent to revisit F.B. Ali in light of subsequent constitutional developments (Arts. 10-A & 184(3) practice). Judicial hierarchy requires consistency, but correction within the Supreme Court is permissible under statutory appeal. (g) Rights with responsibilities — Freedom of assembly and national security. Peaceful protest is a constitutional right subject to lawful restrictions. However, violent attacks on defence installations or espionage against the State transcend protected expression and fall within offences triable under the Army Act read with the Official Secrets Act, 1923. National security and fundamental rights must operate in harmony; neither can extinguish the other. (h) Legislative competence — Articles 8, 232–233, 268 & 260 — Existing laws protected. By virtue of Art. 268, all pre-constitutional enactments—including the 1967 amendment introducing S. 2(1)(d)—stand preserved until repealed by Parliament. Art. 8(5) cannot retrospectively invalidate these laws. The phrase “relating to members of the Armed Forces” in Art. 8(3)(a) must be construed broadly to cover statutes having any logical or operational connection with the armed forces’ discipline or defence of Pakistan. (i) Doctrine of ultra vires — Judicial review — Limits of judicial power. “Ultra vires” means beyond authority. While courts may strike down enactments lacking legislative competence, they must not question legislative wisdom. Judicial review aims to preserve constitutionality, not destroy it. The impugned Army Act provisions were found neither arbitrary nor discriminatory; the burden to prove otherwise lay on the challengers and was not discharged. Disposition: Appeals allowed. Impugned judgment dated 23 October 2023 was set aside. Sub-clauses (i) & (ii) of clause (d) of S. 2(1) and S. 59(4) of the Pakistan Army Act, 1952 were restored. Civilians accused in the 9–10 May 2023 incidents shall be tried by competent criminal or special courts; individual transfer orders to military custody shall be adjudicated by High Courts on merits. Limitation for appeal before High Courts shall run from the date of notification of amendments under the Army Act.

Summary: (a) Constitution of Pakistan — Arts. 4, 8, 9, 10-A, 175(3), 184(3), 199 & 245 — Pakistan Army Act (XXXIX of 1952), Ss. 2(1)(d)(i), (ii), 59(4) — Jurisdiction of military courts to try civilians — Constitutionality and scope. Civilians cannot be subjected to trial by court-martial under the Army Act, 1952. The constitutional framework vests judicial power exclusively in the ordinary judiciary established under Art. 175(3). Military courts are not part of the judicial hierarchy; their purpose is limited to maintaining discipline within the Armed Forces. Any attempt to extend such jurisdiction to persons who are not members of the Armed Forces violates Arts. 4, 9, and 10-A, depriving them of the guarantee of fair trial and due process. The power of Parliament under Art. 8(3)(a) to legislate “in relation to members of the Armed Forces” cannot be stretched to include civilians. Sub-clauses (i) & (ii) of S. 2(1)(d) and S. 59(4) of the Pakistan Army Act were therefore declared unconstitutional, of no legal effect, and struck down. Cited Cases: F.B. Ali v. The State PLD 1975 SC 506; Sheikh Liaqat Hussain v. Federation PLD 1999 SC 504; District Bar Association Rawalpindi v. Federation PLD 2015 SC 401; Khan Asfandyar Wali v. Federation PLD 2001 SC 607; LDA v. Imrana Tiwana 2015 SCMR 1739. (b) Article 10-A — Fair trial and due process — Scope and application to all judicial and quasi-judicial proceedings. The right to a fair trial is a fundamental right available to “every person.” Military courts, functioning under executive control, do not provide independence, openness, or procedural safeguards inherent to Art. 10-A. Proceedings before courts-martial are held in secrecy; accused persons are denied open access to counsel, independent judges, and appeal to civilian courts. Such forums are incompatible with the constitutional mandate of a fair, public, and impartial hearing. Therefore, trials of civilians before military courts offend Art. 10-A and are void. (c) Constitutional structure — Separation of powers and independence of judiciary — Arts. 175(3) & 245 — Military justice vis-à-vis civilian courts. Judicial power is vested exclusively in courts established under Chapter 2 of Part VII. Military courts derive authority from executive control and are thus not courts of law within the meaning of Art. 175. The Armed Forces Act must operate under civilian supremacy; Art. 245 ensures assistance to civil power but does not authorize parallel judicial structures. Hence, exercise of criminal jurisdiction over civilians by military authorities amounts to a usurpation of judicial power, contrary to constitutional design. (d) Constitutional interpretation — Fundamental rights and supremacy of Constitution — Arts. 8 & 9. Fundamental rights form the foundation of constitutional democracy. Where statutory provisions infringe or restrict those rights, they are void to the extent of inconsistency. Article 8(5) cannot be used to justify continuation of an unconstitutional law. The Pakistan Army Act, being a pre-Constitution law, stands subject to constitutional limitations; it cannot override or curtail basic rights protected under the 1973 Constitution. (e) Civilian offences and military discipline — Scope of “persons subject to the Act.” Only those civilians who voluntarily accept service obligations or are directly connected to the Armed Forces in an employment or contractual capacity may fall within limited disciplinary control. The expression “persons not otherwise subject to the Act” cannot include ordinary citizens, protestors, or persons accused of general offences under the Pakistan Penal Code. The constitutional principle of equality before law requires all such persons to be tried by ordinary criminal courts. (f) Cr.P.C., 1898 — S. 549 — Delivery of accused to military authorities — Judicial control and legality. Section 549 Cr.P.C. empowers the Magistrate to deliver an accused to the military authorities only if the offence is exclusively triable by court-martial. The provision does not authorize indiscriminate transfers of civilian cases. Civilian courts retain primary jurisdiction over all ordinary offences; military custody without judicial sanction is unlawful. (g) Supreme Court (Practice and Procedure) Act, 2023 — Ss. 2–5 — Validity and legislative competence. The Supreme Court (Practice and Procedure) Act, 2023 was enacted under the legislative competence conferred by Entry No. 55, Federal Legislative List (jurisdiction and powers of the Supreme Court). The Act does not abridge judicial independence; rather, it provides a procedural mechanism to regulate benches and intra-court appeals within the Supreme Court. Section 5, granting a right of appeal from orders under Art. 184(3), is consistent with the constitutional guarantee of access to justice. The Act is valid, intra vires, and constitutionally sustainable. Cited Cases: Pakistan Lawyers Forum v. Federation PLD 2005 SC 719; Wukala Mahaz Barai Tahafuz Dastoor v. Federation PLD 1998 SC 1263; Sindh High Court Bar Assn. v. Federation PLD 2009 SC 879; Al-Jehad Trust PLD 1996 SC 324. (h) Maintainability of petitions under Art. 184(3) — Locus standi and public importance. Petitions challenging the trial of civilians by military courts involved enforcement of fundamental rights of citizens and raised questions of public importance under Art. 184(3). They were therefore maintainable. Judicial review remains available against executive or legislative acts violating the Constitution. (i) Remedy and implementation — Pending civilian cases under military custody. All civilians facing trial before military courts pursuant to notifications issued after the events of May 9–10, 2023, shall be transferred to the respective anti-terrorism or ordinary criminal courts having jurisdiction. Evidence collected by military authorities may be used before those courts subject to law and due process. Detention beyond legal remand or without judicial order shall stand quashed. Disposition: Appeals dismissed. Majority judgment of 23 October 2023 declaring Sections 2(1)(d)(i) & (ii) and 59(4) of the Pakistan Army Act, 1952 ultra vires the Constitution was affirmed. All civilians accused of offences arising from the May 2023 incidents are to be tried by ordinary criminal courts. The Supreme Court (Practice and Procedure) Act, 2023 upheld as constitutional and intra vires.

Summary: Minority opinion of 2025 SCP 164 ---- (a) Constitution of Pakistan, 1973 ----Arts. 8(3)(a), 175(3), 2A, 9, 10, 10A, 19A, 25, 227----Independence of judiciary---Fundamental rights---Military courts---Trial of civilians---Validity---Scope Trial of civilians under the Pakistan Army Act, 1952 (PAA), held unconstitutional—Clause (d) of s. 2(1) of PAA, which brought civilians under military jurisdiction, not covered by the exemption from fundamental rights under Art. 8(3)(a) of the Constitution—Courts martial being executive forums are outside the scope of Art. 175(3) and cannot exercise judicial functions over civilians—Such trials violate rights to liberty, due process, fair trial, equality, and Islamic injunctions as guaranteed under Arts. 2A, 9, 10, 10A, 19A, 25, and 227—Military officers presiding over such trials do not meet the constitutional standard of independence and impartiality required of judicial officers. (b) Pakistan Army Act, 1952 ----S. 2(1)(d), S. 59---Scope---Trial of civilians by courts martial---Jurisdiction---Excess of constitutional limits Clause (d) of s. 2(1) PAA allowing trial of civilians by military courts declared ultra vires the Constitution—Such provision does not serve disciplinary purposes for Armed Forces personnel and hence cannot qualify for constitutional exemption—Convictions and sentences of civilians by courts martial declared to be coram non judice and set aside. (c) Pakistan’s International Obligations ----International Covenant on Civil and Political Rights, 1966 (ICCPR)---UN Human Rights Principles---Right to fair trial---Trial of civilians by military courts---Violation Supreme Court held that military trials of civilians violate Pakistan’s international obligations under ICCPR and other UN treaties—Right to be tried by an independent and impartial tribunal is fundamental—Military courts comprising serving officers cannot satisfy such standards in case of civilians. (d) Code of Criminal Procedure, 1898 ----S. 169---Transfer of cases from military to civil courts---Post-decision implementation Civilians previously convicted by military courts for incidents of 9th May 2023 to be treated as under-trial prisoners—Their cases stand transferred to competent civil courts for trial under regular criminal law—Those acquitted or who have completed their sentences before courts martial deemed discharged under S. 169 Cr.P.C. (e) Article 245 of the Constitution ----Scope and limits---Use of armed forces---Functionality---Excess of jurisdiction Trial of civilians by Armed Forces for offences allegedly committed during civil unrest on 9th May 2023 declared beyond the functional scope permitted under Article 245 of the Constitution—Such judicial functions are not assigned to military authorities.

Summary: Majority Opinion ----- (a) Constitution of Pakistan ----Arts. 8(3), 8(5), 10-A, 175(3), 184(3), 233 & 268 Challenge to the constitutionality of trials of civilians by Military Courts under Pakistan Army Act, 1952—Scope and maintainability—Original judgment passed in constitutional jurisdiction under Art. 184(3) declaring clause (d)(i) & (ii) of S.2(1) and S.59(4) of Pakistan Army Act, 1952 as ultra vires the Constitution was set aside in intra-court appeals—Held, by majority of five Judges, that the impugned judgment could not be sustained in view of constitutional limitations under Art.8(5) which excludes application of Chapter on Fundamental Rights where expressly so provided—Majority held that no fundamental right had been suspended, nor could the impugned provisions be struck down on that basis—Provisions of Army Act, 1952 reinstated—Legality of trials of civilians under military jurisdiction upheld—Reference made to national security incidents of 9th May 2023 involving attacks on military installations—Held, Army Act provisions applied in such context and did not violate Arts.10-A or 175(3) of the Constitution. (b) Constitution of Pakistan ----Art. 10-A—Right to fair trial—Scope—Held, that provisions of Pakistan Army Act, 1952 and rules framed thereunder sufficiently provide for fair trial and due process for accused persons, including civilians—Trial procedure under the Army Act was held compliant with accepted criminal justice principles—However, Court emphasized distinction between existence of fair trial provisions and their actual application—Right of appeal to High Court declared to be essential for meeting the standard of due process—Government directed to amend law within 45 days to provide independent right of appeal in High Court against convictions of civilians by Court Martial—Limitation period for such appeals to begin from date of amendment. (c) Constitution of Pakistan ----Art. 175(3)—Separation of judiciary—Contention that Military Courts exercising judicial power over civilians violated Art.175(3) not accepted by majority—Military Courts held to be constitutionally recognized under the Pakistan Army Act, 1952, and not in derogation of judicial independence where jurisdiction is lawfully conferred—Reference made to PLD 2015 SC 401 and PLD 1996 SC 632 upholding military trial framework. (d) Pakistan Army Act, 1952 ----S.2(1)(d)(i)&(ii), S.59(4), S.133-B—Jurisdiction over civilians—Restoration of provisions allowing military trials of civilians for acts involving seduction from duty or offences under the Official Secrets Act, 1923 in relation to defence works and military affairs—Held, that the provisions were constitutionally valid and protected under Art.268 of the Constitution, having been enacted via Defence Services Laws Amendment Ordinance, 1967—Court Martial process held compliant with constitutional norms of fair trial where right of appeal is provided. (e) Legislative Direction ----Fair trial—Judicial recommendation—While upholding military jurisdiction, Supreme Court recommended legislative reform to ensure compliance with international human rights standards, including ICCPR—Parliament directed to legislate independent appellate mechanism for civilians convicted by Military Courts within 45 days—Judgment does not bar challenges to transfer of cases to Military Courts or Anti-Terrorism Courts before High Courts, which shall decide such matters on merit. Cited Cases: • Brig. (Retd.) F.B. Ali v. The State PLD 1975 SC 506 • Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632 • District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401 • Col. (R) Muhammad Akram v. Federation of Pakistan PLD 2009 FSC 36 • Jurist Foundation v. Federation of Pakistan PLD 2020 SC 1 ----- Disposition: Appeals allowed by majority (5–2). Judgment dated 23.10.2023 declaring provisions of Army Act ultra vires set aside. Provisions restored. Government directed to legislate independent appellate remedy in High Court for civilians convicted by Military Courts.