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.

Summary: Ss. 2 & 3—Criminal Law Amendment (Special Court) Act, 1976 (XVII of 1976), S. 4—Constitution of Pakistan, Arts. 6 & 199—Trial for high treason—Judgment of Special Court—Territorial jurisdiction of Lahore High Court—Scope The respondent, a former Chief of Army Staff, was convicted and sentenced to death by the Special Court. The Lahore High Court, through its impugned judgment, allowed a writ petition filed before it and set aside the judgment of the Special Court. The High Court, among other findings, held that initiating proceedings against the respondent for high treason was ultra vires, unlawful, coram non judice, and beyond the constitutional mandate. -------- Legality—The primary grievance raised and the relief sought in the respondent’s writ petition related to acts and proceedings conducted by the Special Court in Islamabad. Under Article 199(1)(a)(ii) of the Constitution, only the Islamabad High Court had territorial jurisdiction over such matters. The Lahore High Court assumed jurisdiction not vested in it, violating the constitutional framework. Despite Supreme Court directives to continue the trial, the Lahore High Court exercised writ jurisdiction under Article 199 to set aside the proceedings of the Special Court, including its final judgment. Lahore High Court Bar Association v. General (Retd.) Pervez Musharraf 2019 SCMR 1029 ref. The acts and proceedings undertaken by the Special Court in Islamabad could only be challenged before the Islamabad High Court. The respondent, instead of pursuing his grievance before the appropriate forum, filed a petition in the Lahore High Court, which entertained the matter without jurisdiction. Government of Pakistan v. Special Court PLD 2020 Isl. 82 ref. --------Art. 199—Civil Procedure Code (V of 1908), O. II, R. 2—Territorial jurisdiction of a High Court—Scope The primary object of the petition, i.e., the main grievance and ultimate relief sought, determines the territorial jurisdiction of the High Courts. If the relief pertains to an act or proceeding within the jurisdiction of a particular High Court, no other High Court can assume jurisdiction. Splitting claims and seeking relief from multiple High Courts regarding the same cause of action is prohibited under Order II, Rule 2, C.P.C. Relief regarding federal actions and acts pursuant to such actions must be sought in one petition and adjudicated by the High Court having territorial jurisdiction over both. --------Sandalbar Enterprises v. Central Board of Revenue PLD 1997 SC 334; Amin Textile Mills v. Federation of Pakistan 1998 SCMR 2389; Sethi and Sethi v. Federation of Pakistan 2012 PTD 1869 and Province of Punjab v. Shehzad Anjum 2024 SCMR 766 ref. --------High Treason (Punishment) Act, 1973 (LXVIII of 1973), S. 2—Criminal Law Amendment (Special Court) Act, 1976 (XVII of 1976), S. 12(3)—Constitution of Pakistan, Arts. 6 & 199—Trial for high treason—Maintainability of writ petition—Availability of alternate remedy The High Court’s writ jurisdiction cannot be invoked where an adequate, alternate remedy exists under the law. Section 12(3) of the Criminal Law Amendment (Special Court) Act, 1976, provides an appeal mechanism to the Supreme Court against a Special Court’s judgment. The respondent bypassed this remedy and sought relief under writ jurisdiction, which is impermissible under the doctrine of exhaustion of remedies. A party must utilize the remedies provided under the relevant law before invoking writ jurisdiction. --------Imran Khattak v. Sofia Waqar Khattak 2014 SCMR 122; Tariq Transport Company v. Sarghodha-Bhera Bus Service PLD 1958 SC (Pak.) 437; Deputy Commissioner of Income Tax/Wealth Tax v. Punjab Beverage Company 2008 SCMR 308 ref. --------S. 9—Trial in absentia—Lahore High Court declared Section 9 ultra vires the Constitution—Legality Section 9 of the Criminal Law Amendment (Special Court) Act, 1976, allows the trial of an accused in absentia under specific circumstances, such as willful absence or behavior impeding justice. The Lahore High Court declared Section 9 unconstitutional, stating that trials in absentia are impermissible. However, the respondent was not "aggrieved" under Article 199(1)(a) or (c) of the Constitution and had not challenged the entire provision of Section 9. The High Court’s declaration lacked reasoning and was legally unjustified. --------Lahore High Court Bar Association v. General (Retd.) Pervez Musharraf 2019 SCMR 1029 ref. --------S. 3—Constitution and reconstitution of Special Court—Applicability of Mustafa Impex judgment The Lahore High Court invalidated the Federal Government’s actions, including the filing of a complaint and constitution of the Special Court, relying on the Mustafa Impex judgment (PLD 2016 SC 808). However, the principle in Mustafa Impex is not retroactive and applies only from the date of its pronouncement. The constitution and reconstitution of the Special Court predated this judgment and complied with the legal framework. Actions taken after Mustafa Impex also adhered to its principles. Thus, the High Court’s findings were contrary to the law. --------PMDC v. Muhammad Fahad Malik, 2018 SCMR 1956 ref.----- The case pertains to the legality of the Lahore High Court's decision that annulled proceedings and conviction of General (Retd.) Pervez Musharraf by a Special Court for high treason under Article 6 of the Constitution. The Lahore High Court's judgment was challenged on grounds of lack of territorial jurisdiction and its misapplication of the law, especially with respect to precedents set by the Supreme Court. The Supreme Court examined whether the High Court had jurisdiction and acted within the bounds of constitutional and legal principles. ------- Issues: ------- 1) Did the Lahore High Court have territorial jurisdiction to entertain the writ petition against the acts and proceedings of the Islamabad-based Special Court? ------- 2) Was the exercise of writ jurisdiction under Article 199 justified in the presence of an alternate adequate remedy of appeal? ------- 3) Did the Lahore High Court violate precedents and directions of the Supreme Court in setting aside the Special Court's proceedings? ------- 4) Was the Lahore High Court correct in declaring Section 9 of the Special Court Act ultra vires the Constitution? ------- 5) Did the High Court exceed its jurisdiction by deciding on the merits of the high treason charges? ------- Holding/Reasoning/Outcome: Lack of Jurisdiction: The Supreme Court held that the Lahore High Court lacked territorial jurisdiction under Article 199 of the Constitution. The acts and proceedings of the Special Court, located in Islamabad, fell exclusively within the territorial jurisdiction of the Islamabad High Court. ------- Alternate Remedy: The High Court’s exercise of writ jurisdiction was unwarranted as the respondent had an adequate remedy of appeal under Section 12(3) of the Special Court Act, which was ultimately availed. ------- Violation of Precedents: The Supreme Court noted the Lahore High Court’s disregard for binding precedents, including prior Supreme Court judgments, undermined judicial propriety. ------- Section 9 of the Special Court Act: The declaration of the entire Section 9 as ultra vires was unwarranted and lacked justification. The Supreme Court reaffirmed its earlier decision in Lahore High Court Bar Association validating trials in absentia under certain conditions. ------- Merits of the Case: The Lahore High Court improperly delved into the substantive issue of whether General Musharraf committed high treason, usurping the jurisdiction of the Special Court and appellate jurisdiction of the Supreme Court. ------- Outcome: The Supreme Court set aside the Lahore High Court’s judgment, holding it unconstitutional and without jurisdiction. The petitions were converted into appeals and allowed. ------- Citations/Precedents: Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879): Declared the Proclamation of Emergency Order, PCO, and Oath Order of 2007 unconstitutional. Nadeem Ahmed v. Federation of Pakistan (PLD 2010 SC 1165): Reaffirmed the invalidity of actions taken under the PCO. Moulvi Iqbal Haider v. Federation of Pakistan (PLD 2013 SC 507): Directed inquiry and trial under Article 6 for high treason. Abdul Hameed Dogar v. Federation of Pakistan (PLD 2016 SC 607): Limited the Special Court’s authority to associate suspects. Lahore High Court Bar Association v. Federation of Pakistan (PLD 2019 SC 645): Validated trial in absentia under Section 9 of the Special Court Act. Mustafa Impex v. Government of Pakistan (PLD 2016 SC 808): Mandated Federal Cabinet approval for actions by the Prime Minister. PMDC v. Federation of Pakistan (PLD 2018 SC 189): Limited retrospective application of Mustafa Impex. Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue (1997 SCMR 1131): Defined territorial jurisdiction of High Courts. Amin Textile Mills Ltd. v. Central Board of Revenue (1992 SCMR 1652): Emphasized dominant relief determining territorial jurisdiction. Sethi and Sethi v. Collector of Customs (1985 CLC 324): Addressed relief-seeking in territorial jurisdiction. Articles 189 and 190 of the Constitution: Establish binding authority of Supreme Court judgments on all judicial and executive authorities.

Summary: Trial of civilians by court martial under s. 2(1)(d) of Pakistan Army Act 1952 declared ultra vires the Constitution. --- Merged Final Judgement of Justice Munib Akhtar, Justice Yahya Afridi, Justice Ayesha A. Malik ---- The examination of the War Articles reveals that it substantially contained provisions corresponding to the Army Act, particularly in matters related to the military justice system. Title III of the War Articles, dealing with courts martial, aligns with the current court martial system under the Army Act and the 1954 Rules. The historical perspective emphasizes that legislative competence regarding armed forces, including the military justice system, has been integral since the early days of British rule.The analysis draws parallels with the Muhammad Yusuf case, highlighting that legislative competence may extend to matters judicial, even if seemingly unrelated. The challenge regarding the constitutionality of courts martial under Article 175 is dismissed, asserting that courts martial, deeply embedded in the military justice system, fall within the legislative competence of entry No. 1 of the Federal Legislative List.The composition of courts martial, historically manned by military officers, aligns with their current structure under the Army Act. The challenge asserting a separation between the judiciary and executive under Article 175 is rejected, emphasizing the unique historical arc of courts martial.Moving to the challenge based on fundamental rights, Article 10A (right to a fair trial) is invoked, arguing that civilians brought before courts martial are denied their fundamental rights under Article 8(3)(a). The court explores the historical context of Article 8(3)(a) across different constitutions, emphasizing its consistent purpose of ensuring the proper discharge of duties and maintaining discipline among armed forces.Comparatively, the court notes the Indian Constitution's Article 33, which allows Parliament flexibility in restricting or abrogating fundamental rights for armed forces. However, the Pakistani Constitution's Article 8(3)(a) follows a more rigid approach.The court concludes that the challenge based on specific fundamental rights may miss the broader picture. Regardless, the denial of fundamental rights stems from Article 8(3)(a). The court explores the historical and comparative aspects of this provision, emphasizing its consistent purpose. While acknowledging the need for flexibility, the court upholds the constitutional validity of Article 8(3)(a) in the context of the military justice system. The case involves a constitutional challenge regarding the insertion of para (i) provisions into the Army Act, which pertain to the trial of civilians by military courts. The court interprets Article 8(3)(a) and Article 8(5) of the Constitution, addressing the denial or derogation of fundamental rights. It emphasizes the need for a narrow interpretation of Article 8(3)(a) due to its drastic consequences, contrasting it with the robust protection provided by Article 8(5).The court discusses the historical context, citing the Indian Constitution's approach, and distinguishes it from the rigid nature of Article 8(3)(a) in the local context. The judgment also references the case of Prithi Pal Singh vs. The Union of India, highlighting the importance of not creating a separate class of citizens devoid of constitutional protections.The court introduces Article 8(5) and underscores its role in safeguarding fundamental rights. It explains that Article 8(5) protects fundamental rights collectively and requires both situational and anticipatory consideration. The court emphasizes that if a law, including para (i) insertions, results in the suspension or denial of fundamental rights, it must be declared ultra vires the Constitution.The judgment critiques the decision in F.B. Ali within the context of the 1962 Constitution, asserting that the present Constitution, with Article 8(5), necessitates a different analysis. It concludes that para (i) insertions are ultra vires the Constitution, particularly Article 8(5), irrespective of whether they were initially insertions or became provisions of the Army Act.The court addresses the argument concerning Article 10A and clarifies that the essence of fundamental rights cannot be altered by granting transitory rights through legislation. It underscores that citizens should not be reduced to seeking additional rights as a plea to the State.The court makes it clear that its judgment does not question the fairness of courts martial within their traditional framework for the military but addresses the constitutional issues raised in the case.the court reviewed constitutional provisions and legal precedents to address the interpretation of Article 8(3)(a) and the validity of certain provisions. The court acknowledged the 1956 Constitution's Article 22, which guaranteed the right to move the Supreme Court for the enforcement of fundamental rights. However, it emphasized the limited scope of Article 22(3) compared to the contemporary Article 8(5), highlighting the latter's explicit requirement for express suspension.The court then delved into the Attorney General's arguments, particularly focusing on the "nexus" theory derived from the F.B. Ali case. The "nexus" theory posits that legislative competence exists if an offense has a connection with the defense of Pakistan. The court scrutinized this theory, quoting relevant passages from the F.B. Ali judgment and underlining the importance of the term "expressly" in Article 8(5).Rejecting the "nexus" theory, the court addressed the second strand of the argument concerning the purposes of Article 8(3)(a). The Attorney General asserted that laws ensuring the proper discharge of duties by the Armed Forces, either internally or externally, fell within Article 8(3)(a). However, the court disagreed, emphasizing a holistic interpretation of the provision and rejecting attempts to create internal and external aspects.The court then clarified constitutional principles, distinguishing between legislative competence and constitutional permissibility. It highlighted that even if a law falls within legislative competence, it might be constitutionally impermissible due to violations of fundamental rights. It cited examples related to concurrent competences and fundamental rights challenges.The court concluded that the "nexus" theory and the expansive interpretation of Article 8(3)(a) were not sustainable. It affirmed the ultra vires status of the para (i) provisions, reiterating the role of Article 8(5) in scrutinizing laws affecting fundamental rights. The court noted that its conclusion was provisional, pending an examination of Emergency Provisions, as outlined in Article 233.Turning to Emergency Provisions, the court explored Article 233, highlighting its two clauses and their respective implications during a Proclamation of Emergency. It explained how clause (1) allows the State to make laws that would be competent but for the specific fundamental rights restrictions during an emergency. The court underscored that this suspension was temporary, automatically ceasing when the Proclamation ended.The court then addressed clause (2) of Article 233, which empowers the President to suspend the right to move courts for the enforcement of specified fundamental rights during an emergency. It drew a parallel with the Indian Constitution's Articles 358 and 359, emphasizing the distinction between the suspension of fundamental rights and the suspension of the right to enforce them.Referring to the Indian case Makhan Singh Tarsikka v State of Punjab, the court highlighted the acknowledgment that an order under Article 359(1) suspended the right to move courts for enforcement without expressly suspending the fundamental rights themselves.The court concluded by acknowledging subsequent amendments in the Indian Constitution, specifically clauses (1A) and (1B) of Article 359, which further clarified the distinction between the suspension of rights and the suspension of the right to enforce them during an emergency.In summary, the court thoroughly examined constitutional provisions, the "nexus" theory, and relevant precedents to assert the provisional ultra vires status of the para (i) provisions and laid the groundwork for further analysis in the context of Emergency Provisions. The passage discusses the legal implications of Clause (1A) in comparison with Article 358 of the Indian Constitution, highlighting its attempt to equalize the effects of a Proclamation of Emergency and the suspension of fundamental rights enforcement. The discussion includes citations from Durga Das Basu's treatise and Union of India v Bhanudas Krishna Gawde case.Furthermore, the passage distinguishes the constitutional context between India and the jurisdiction under consideration, particularly in relation to Article 8(5) and the absence of an equivalent provision in Article 233(2). It emphasizes that the explicit suspension of fundamental rights under Article 8(5) prevents any implicit suspension and underscores the importance of adhering to the express provisions of the Constitution.The text then delves into the analysis of Article 233(2) and the distinction between the suspension of the right to move a court for enforcement and the suspension of the fundamental rights themselves. It argues that even during a Proclamation of Emergency, the rights specified in Article 233(1) are suspended, but not all fundamental rights, as highlighted in the context of Article 8(5).The passage subsequently explores the three cases discussed in paragraph 4, particularly focusing on F.B. Ali. It asserts that F.B. Ali is distinguishable due to the material differences in the present Constitution, particularly the existence of Article 8(5), and concludes that even within the framework of F.B. Ali, the handling of around 103 persons appears contrary to law, violating Articles 9 and 10A.Finally, the discussion turns to Liaquat Hussain, a decision made in the context of a state of emergency. The passage briefly outlines the key aspects of the case, highlighting the unconstitutional nature of the Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998, and the subsequent striking down of the law. The case under consideration involves the challenge to an ordinance on the grounds that it establishes a parallel judicial system, specifically military courts, which is deemed impermissible under the Constitution. The dispute focuses on whether the Armed Forces, acting in aid of civil power under Article 245 of the Constitution, can set up Military Courts for the trial of civilians for offenses not connected with the Armed Forces.The judgment, delivered by Chief Justice Ajmal Mian, concludes that the impugned Ordinance, which established Military Courts for trying civilians, is beyond the legislative competence of Parliament and therefore ultra vires the Constitution. The Chief Justice references previous cases, including Mehram Ali's case, to emphasize that the Constitution only allows specific tribunals to share judicial power and that Military Courts are not within this category.The Court rejects the argument that Military Courts, convened under the Ordinance, are incidental measures under Article 245 and asserts that such courts cannot be exempted from the constitutional provisions governing the judiciary. It concludes that the power to legislate the impugned Ordinance for establishing Military Courts cannot be derived from Article 245 or the Federal Legislative List.In the course of the judgment, the Chief Justice considers F.B. Ali, emphasizing that it dealt with a different context, legislative competence, and the specific application of the Army Act. The judgment clarifies that F.B. Ali does not support the arguments put forth by the Attorney General in the present case.Additionally, the judgment delves into the Full Court decision in District Bar Association, which involved constitutional amendments enabling the trial of civilians by military courts. The Court distinguishes the context of District Bar Association, where amendments were time-bound and exceptional due to the perceived warlike situation, from the present case, where the impugned Ordinance lacked legislative competence without such extraordinary circumstances.The case involves a constitutional challenge to certain provisions, specifically para (i) of sub-clauses (i) and (ii) of clause (d) of s. 2(1) of the Army Act, inserted by the Ordinances of 1967, and equivalent provisions in the Pakistan Air Force Act, 1953, and the Navy Ordinance, 1961. These provisions pertain to the jurisdiction of courts martial over civilians in certain circumstances.The constitutional amendments incorporated laws related to the Armed Forces and the Protection of Pakistan Act, 2014, into the First Schedule, immunizing them against challenges based on fundamental rights. The court emphasizes that any alteration to the First Schedule requires a constitutional amendment.The District Bar Association case is discussed, noting that it addressed different issues and questions, making it distinguishable from the present case. The court rejects the argument that legislative competence, as established in F.B. Ali, becomes ineffective under the present Constitution, asserting that the legislative competence can be limited, and its exercise is subject to conditions outlined in District Bar Association.The court also discusses Article 199(3) and rejects the argument that it recognizes the legislative competence identified in F.B. Ali, pointing out that the Constitution can be amended to omit such provisions.The judgment declares para (i) provisions as ultra vires the Constitution, impacting the jurisdiction of courts martial over civilians. It addresses the maintainability of petitions, emphasizing the denial of fundamental rights and the public importance of the issues raised.Concerning cases already decided by courts martial, the court establishes categories and directions for their treatment based on whether the sentences have been served, legal remedies exhausted, or convictions are still under review.In conclusion, the court reaffirms its view on the unconstitutionality of para (i) provisions and provides directions for the treatment of past and ongoing cases affected by the judgment.

Summary: Merged Detailed Judgement ---- Civilian Trials in Military Court declared unconstitutional ---- Ultra Vires Declaration: The Court Declared That Clause (D) Of Subsection (1) Of Section 2 Of The Pakistan Army Act, 1952 (In Both Of Its Sub-Clauses (I) And (Ii)) And Subsection (4) Of Section 59 Of The Same Act Are Ultra Vires The Constitution And Of No Legal Effect. This Means That These Provisions Were Found To Be In Violation Of The Constitution And, Therefore, Were Deemed Legally Invalid. Civilian Trials: The Court Ruled That The Trials Of Civilians And Accused Persons, Specifically Around 103 Individuals Mentioned In The List Provided By The Attorney General, And Others Similarly Situated Regarding The Events Of 9th And 10th May 2023, Should Be Conducted By Criminal Courts Of Competent Jurisdiction Established Under Ordinary And Special Laws. This Decision Underscores The Fundamental Principle That Civilians Should Be Tried In Civilian Courts, Not Military Tribunals. No Legal Effect Of Military Proceedings: The Court Explicitly Stated That Any Actions Or Proceedings Under The Pakistan Army Act, Including Trials By Court Martial, In Respect Of The Aforementioned Persons Are And Would Be Of No Legal Effect. This Means That Military Proceedings Or Trials Under The Army Act Against Civilians Or Accused Individuals In This Context Were Rendered Legally Null And Void. Partial Dissent: One Member Of The Bench, Mr. Justice Yahya Afridi, Reserved Judgment As To One Part Of The Declaration But Joined The Other Members Of The Bench Regarding The Other Aspects. This Indicates That There May Have Been Some Differences In Opinion Among The Judges On Certain Elements Of The Case. In Summary, The Supreme Court's Legal Analysis In This Judgment Focused On The Constitutionality Of Specific Provisions Within The Pakistan Army Act, The Rights Of Civilians To Be Tried In Civilian Courts, And The Legal Consequences Of Military Proceedings Against Civilians In The Specified Context. The Judgment Sets A Legal Precedent For The Treatment Of Civilians In Legal Matters Related To The Armed Forces In Pakistan.

Summary: Bail granted ---- (a) Official Secrets Act, 1923 (Sections 5, 9, and 12) – Bail Considerations – Prohibitory vs. Non-Prohibitory Clause Nature of Offence: The offences under Sections 5 and 9 of the Official Secrets Act, 1923, if punishable under Section 5(3)(b) with imprisonment extending up to 14 years due to an alleged connection with a foreign power or state security, fall under the prohibitory clause of Section 497(1) CrPC. However, if the alleged offences do not meet this threshold, they are bailable under Section 12(1)(b) of the Official Secrets Act, 1923. Prima Facie Case: At the bail stage, courts are not required to conduct a deep appraisal of evidence but must tentatively assess whether there are reasonable grounds to believe the accused has committed the offence. Lack of Evidence for Non-Bailable Offence: The Supreme Court held that there was no sufficient incriminating material to establish that Imran Ahmed Khan Niazi disclosed classified information in a manner that benefited a foreign power or jeopardized state security. Similarly, there was no evidence suggesting Makhdoom Shah Mahmood Qureshi abetted such an act. Outcome: The offences alleged do not fall under the prohibitory clause, and there are sufficient grounds for further inquiry into their guilt, warranting the grant of bail. ------ (b) Constitutional Rights – Free and Fair Elections – Political Participation Significance of Genuine Elections: Free, fair, and ‘genuine elections’ are essential for upholding democracy and ensuring the will of the people is expressed without intimidation, discrimination, or manipulation. Rights of Political Leaders and Candidates: During an election period, the incarceration of political leaders or candidates, unless under exceptional circumstances, may infringe upon the constitutional rights of the voters, political parties, and candidates. Impact of Incarceration: Keeping political leaders incarcerated during elections undermines the integrity of the electoral process, creates an uneven playing field, and compromises the right to informed choice of voters. Public Interest and Bail Principle: In cases involving political figures during elections, the principle of bail as a rule and jail as an exception must be strictly applied. Bail should only be denied in exceptional circumstances, such as a likelihood of absconding or repetition of the offence. ------ (c) Historical Context – Democratic Process in Pakistan Chequered Electoral History: The Supreme Court recognized Pakistan's turbulent democratic history, where political leaders were frequently incarcerated, exiled, or deprived of participation in elections. Such actions have historically undermined democracy and perpetuated a perception of political victimization. Equal Opportunity for Political Competitors: To ensure ‘genuine elections’, it is imperative that all political parties and candidates are given an equal opportunity to contest without fear, intimidation, or discrimination. Judicial Responsibility: The courts have a duty to ensure that elections remain free from undue influence, and political leaders are not unnecessarily incarcerated during the electoral process unless exceptional circumstances justify such detention. ------ (d) Trial and Bail – Purpose of Incarceration Purpose of Bail: Incarceration during trial must serve a useful purpose. If the investigation is complete and the evidence is primarily documentary, continued detention of the accused serves no meaningful objective. Public Interest Over Private Detention: The greater public interest in ensuring free and fair elections outweighs any speculative concerns about the accused misusing bail. ------ Disposition: The petitions are converted into appeals and allowed. The orders of the Islamabad High Court are set aside. Bail applications are accepted, subject to furnishing bail bonds of PKR 1 million with two sureties each. Observations are tentative and shall not influence the trial court proceedings. The bail may be revoked if misused, including causing delays in the trial process.

Summary: On 13th of December 2023, the Supreme Court of Pakistan temporarily suspended the order that declared civilian trials in military courts under certain clauses of the Army Act as being ultra vires the constitution, subject to the condition that no final judgment would be passed against the 103 accused by the military courts until the next date of hearing --- the impugned order pertains to the decision of the bench on 23.10.2023 that declared clause (d) of subsection (1) of Section 2 of the Army Act (in both of its subclauses (i) & (ii)), and subsection (4) of Section 59 of the said Act as being ultravires the Constitution. Next date of hearing set to be third week of January 2024 --- applications related to live streaming and reconstitution of benches to be decided on the next date of hearing.

Summary: Ultra Vires Declaration: The Court declared that clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub-clauses (i) and (ii)) and subsection (4) of Section 59 of the same Act are ultra vires the Constitution and of no legal effect. This means that these provisions were found to be in violation of the Constitution and, therefore, were deemed legally invalid.Civilian Trials: The Court ruled that the trials of civilians and accused persons, specifically around 103 individuals mentioned in the list provided by the Attorney General, and others similarly situated regarding the events of 9th and 10th May 2023, should be conducted by Criminal Courts of competent jurisdiction established under ordinary and special laws. This decision underscores the fundamental principle that civilians should be tried in civilian courts, not military tribunals.No Legal Effect of Military Proceedings: The Court explicitly stated that any actions or proceedings under the Pakistan Army Act, including trials by Court Martial, in respect of the aforementioned persons are and would be of no legal effect. This means that military proceedings or trials under the Army Act against civilians or accused individuals in this context were rendered legally null and void.Partial Dissent: One member of the Bench, Mr. Justice Yahya Afridi, reserved judgment as to one part of the declaration but joined the other members of the Bench regarding the other aspects. This indicates that there may have been some differences in opinion among the judges on certain elements of the case.In summary, the Supreme Court's legal analysis in this judgment focused on the constitutionality of specific provisions within the Pakistan Army Act, the rights of civilians to be tried in civilian courts, and the legal consequences of military proceedings against civilians in the specified context. The judgment sets a legal precedent for the treatment of civilians in legal matters related to the armed forces in Pakistan.