The caretaker federal government has filed an appeal in the Supreme Court challenging the decision of a five-member bench that declared the trials of civilians under the Pakistan Army Act 1952 as unconstitutional.
The appeal, filed on Friday, made party to former Chief Justice Jawwad S. Khawaja, provinces of Balochistan, Sindh, Khyber Pakhtunkhwa, and Punjab, along with the government through the secretary of the defense ministry, as respondents.
The landmark ruling on October 23, delivered by Justices Ijazul Ahsan, Munib Akhtar, Yahya Afridi, Syed Mazahar Ali Akbar Naqvi, and Ayesha Malik, received widespread acclaim.
The federal government’s appeal follows a similar plea filed by the Sindh government, although the fresh appeal is yet to be accepted for hearing.
The appeal by the federal government contended that the incidents on May 9 constituted “targeted attacks” on military installations in an “organized and coordinated manner.” It argues that these events were not localized or isolated and references multiple first information reports (FIRs) registered in the aftermath.
The plea acknowledged that some FIRs did not explicitly mention provisions of the Army Act. However, it asserted that the Supreme Court had previously ruled that the contents, not specific statutory provisions, determined the nature of offenses.
The appeal raises a procedural challenge, suggesting that the Supreme Court Practice and Procedure Act, declared ultra vires the Constitution and effective since April 21, renders the composition of the bench in violation of prescribed procedures. It further argues that the judgment is coram non judice (without jurisdiction) and therefore null and void in the eyes of the law.
The federal government contended that the trial of accused persons, whether military personnel or civilians, cannot be challenged for violating fundamental rights enshrined in Articles 9, 10-A, and 25.
It emphasized the constitutional insulation of Sections 2(1)(d) and 59(4) of the Army Act from challenges on the grounds of fundamental rights.
