May 9 riots: SC conditionally allows military courts to pronounce reserved verdicts

The Supreme Court on Thursday conditionally allowed military courts to pronounce reserved verdicts in cases pertaining to civilians held for their alleged involvement in the May 9 riots.

It directed that judgements be announced in cases in which the nominated suspects could be released before Eid.

The court issued the directives as it heard a set of intra-court appeals (ICAs) against its Oct 23 unanimous ruling nullifying the military trials of civilians involved in the May 9 riots.

A six-member bench — led by Justice Aminuddin Khan and including Justice Muhammad Ali Mazhar, Justice Syed Azhar Hasan Rizvi, Justice Shahid Waheed, Justice Musarrat Hilali and Justice Irfan Saadat Khan — presided over the proceedings.

The case pertains to the trial of more than 100 civilians for their alleged role in attacks on army installations during the riots that followed ex-premier Imran Khan’s arrest on May 9 last year.

In a widely praised ruling last year, a five-member SC bench — comprising Justices Ijazul Ahsan, Munib Akhtar, Yahya Afridi, Syed Mazahar Ali Akbar Naqvi and Ayesha Malik — had unanimously declared that trying the accused civilians in military courts was ultra vires the Constitution.

The apex court had declared that the accused would not be tried in military courts but in criminal courts of competent jurisdiction established under the ordinary or special law of the land.

On December 13, in a 5-1 majority verdict, the SC conditionally suspended its Oct 23 ruling, pending a final judgement as it heard a set of ICAs.

The appeals against the verdict had been filed by the then-caretaker federal government as well as the provincial ones in Balochistan, Khyber Pakhtunkhwa and Punjab. Sindh had denied filing a purported plea on the same matter and was not included among the petitions taken up earlier. The defence ministry had also moved an ICA, requesting the apex court to suspend the verdict’s operation during the pendency of the appeal.

In January, a petition was filed by Faisal Siddiqui on behalf of some of those challenging the trials to restrain federal and provincial governments from engaging a private counsel to plead the matter.

On Jan 29, Justice Sardar Tariq Masood, who has since retired, referred the ICAs back to a three-judge committee for the constitution of a larger bench.

Earlier this month, former CJP Jawwad S. Khawaja, who is one of the petitioners to challenge the military trials, had requested the apex court for an early hearing of the appeals, contending that the continued presence of civilians in military custody was “beyond compensation”.

At the last hearing, the SC had asked the federal government for information about how many of the civilians allegedly involved in the May 9 violence have either been awarded short jail terms by military courts, or waiting to be released under Section 382-B of the CrPC, or straight away acquitted.

During the same hearing, Khyber Pakhtunkhwa Additional Advocate General Syed Kauser Ali Shah had submitted a letter, written to him by KP Advocate General Shah Faisal Utmainkhel, expressing the provincial government’s intention to withdraw the appeal against the Oct 23 ruling.

Today’s hearing

During today’s hearing, lawyer Siddiqui contended that if the accused in question had been tried in regular courts then they would have been released or granted bail by now. He argued that there was no evidence in these cases.

“You want to try the case in anti-terrorism courts,” Justice Mazhar remarked, pointing out that the punishment by such courts was not less than 14 years.

Justice Waheed then asked about the charges under which the first information reports (FIR) had been registered. At this, Attorney General for Pakistan (AGP) Mansoor Usman Awan replied that FIRs were registered under the Official Secrets Act and the Anti-Terrorism Act.

“Then why don’t we grant bail to the accused? Why don’t we suspend their sentence?” Justice Waheed asked.

The AGP replied that the punishment must first be handed down before it could be suspended. “Bail can only be granted when the court says the law cannot be applied,” Awan said.

During the hearing, the AGP also hinted at the possibility of 15 to 20 of the accused being released by the special courts. “A total of 105 accused are in the army’s custody,” he said.

AGP Awan further said that there were three stages to the release of the suspects. The first step would be the pronouncement of the reserved judgements; the second would be its confirmation; and the third step would be for the army chief to give concessions to those with reduced sentences.

The attorney general then urged the apex court to allow military courts to announce the reserved verdicts.

“Even if permission is granted, it will be subject to the final decision on the appeals [against the Oct 23 ruling],” Justice Khan remarked.

Justice Rizvi then inquired about the names of those who would be released. AGP Awan replied that the names could not be released until the military courts decided the cases.

“Those whose punishment is one year will be given concessions,” the AGP said.

Subsequently, the SC gave conditional permission to military courts to announce the reserved verdicts. It directed that judgements be announced in cases in which the nominated suspects could be released before Eid.

The top court noted that the AGP had given assurances that those with lesser sentences would be given legal concessions. The court further said that permission to decide further appeals would be subject to the final decision on the appeals against the Oct 23 ruling.

The court also directed the attorney general to submit a report in this regard to the registrar.

At the same time, the court also accepted the KP government’s plea to withdraw its appeal against the Oct 23 ruling. The hearing was subsequently adjourned till the fourth week of April.