“ISPR sahib, listen to me carefully. Respect is not [confined] to a single institution; respect should be for every single citizen,” thundered then-PTI chief Imran Khan in a video released a little after 11am before departing for the Islamabad High Court on May 9 last year.

Hours later, he was arrested in the Al Qadir Trust case. The case was irrelevant to his supporters and the development was expected — nevertheless, Imran Khan was “a red line” and so, protests erupted almost immediately. But within hours, they turned into riots across Pakistan that lasted more than 24 hours.

When the smoke from torched vehicles and tear gas finally cleared, condemnations poured in and a chase ensued. Nearly 500 first information reports were registered. Thousands were arrested, of whom 105 were handed into military custody weeks, if not days, later.

A year on, as of May 9, 2024, 85 of these civilians are still in military custody.

• What happened on May 9
• Battleground Cantt
• Families of the accused
• Military calls
• Trials under the Secrets Act
• Controversial amendment
• Scope for appeal
• Prolonged detention
• All eyes on SC

What happened on May 9

At least 10 people lost their lives and hundreds sustained injuries, while approximately 40 public buildings and military installations — including Lahore Corps Commander’s House (Jinnah House) and Askari Tower in Lahore, General Headquarters (GHQ) in Rawalpindi, Inter-Services Intelligence (ISI) Office in Faisalabad, FC Fort in Chakdara, Radio Pakistan building in Peshawar, Toll Plaza at Swat Motorway and the Mianwali Air Base — were damaged.

In sum, 62 incidents of violence were witnessed inflicting a loss of Rs2.5 billion on the country, of which, according to the state, Rs1.98bn loss was suffered by the army.

To this day, the military says the events were a coordinated attack by the PTI leadership.

“Nothing is hidden about May 9. The public, the army and we all have irrefutable evidence. All of us saw this incident unfolding, we all saw how everyone was [brainwashed] against the army, its leadership, agencies and institutions through lies and propaganda,” Inter-Services Public Relations (ISPR) director general, Maj Gen Ahmed Sharif, said two days before the first anniversary of the May 9 riots.

He added that “some political leaders” had issued orders to their supporters on May 9 to selectively target military installations.

PTI, meanwhile, is demanding a judicial inquiry into May 9 for the “real culprits” while Imran Khan remains behind bars.

Battleground Cantt

Around 2:30-3pm, when Jasmine* (female, age 35-40) received instructions to go home from her office, she opted to return to her house in Cantt, considering it to be the “safest” place in Lahore.

“Normally, there would be army personnel at the entrance to Cantt, but that day there was no one there when my car passed through,” she recalled.

Another resident of Cantt, Shazia* (female, age 65-70), was at home when she learned about Imran’s arrest. Her younger sister, who also lived nearby, was out shopping at Liberty Market and called her to inform her that shops were closing.

“I was really worried, so I kept calling her to know her whereabouts,” she said. Her sister told her that when she entered the gated society between 3:30pm and 4pm, there was no one present at the checkpoints.

Shazia, residing close to Rahat Bakery on Sarwar Road, started hearing the clamour of cars, and screams and shouts of people around 5:30pm.

Around 6:15pm, she and her husband went outside their residence to find the source of the nearby commotion. “We had no inkling of what was about to unfold; we were simply standing at Rahat Bakery Chowk out of curiosity,” she explained.

Shortly after, she observed two buses arriving, packed with police officers. They disembarked and then proceeded towards the Corps Commander’s House. Merely five minutes later, she saw the officers rushing back.

“There were a few young boys and girls coming from the direction of the Corps Commander’s House. They even threw stones at the police,” she stated.

In the midst of this, Shazia witnessed Tayyaba Raja stepping forward and throwing her dupatta near the chowk, a scene which was captured and shared on social media widely. “The moment she did that, a police officer approached and forcefully dragged her by her hair from the chowk towards Shabbir Road,” she recounted.

She saw a protester in the driver’s seat of a police van while two others were pushing the vehicle towards the chowk. “At the chowk, they set fire to the police van,” she recounted.

Ahmed* (male, age 25-30), a Cantt resident who lives further away from the military installations, was at home that day when calls for protests surfaced online. “My friends and I did go around 2pm or 3pm but then we rushed back when things appeared to be getting out of hand around 5pm to 6pm,” he said. “It seemed as if Lahore had become a war zone.”

Upon returning home, Shazia and her husband continued to hear the commotion until 5am. “We could still hear the sound of gunshots, and there was so much tear gas that even after closing all our windows, my husband had trouble breathing due to his asthma problems.”

Not too far away from them, Jasmine also felt her eyes burning around 7pm. Her house was a few minutes’ walk away from the Corps Commander’s House. “I couldn’t understand why my eyes were burning,” she recalled. Through her work group on WhatsApp, she learned of protests erupting inside Cantt.

“I was terrified after that day,” said Shazia.

For Ahmed, the scenes from May 9 stayed long beyond the day with him; whenever he ventured towards Jinnah House, he felt as if he was being followed. He shrugged it off as paranoia.

• What happened on May 9
• Battleground Cantt
• Families of the accused
• Military calls
• Trials under the Secrets Act
• Controversial amendment
• Scope for appeal
• Prolonged detention
• All eyes on SC

Families of the accused

All of the 10 families that Dawn.com spoke to said the same thing; after the arrest by police and subsequent transfer into military custody, there was silence on the whereabouts of the suspect for at least one or one-and-a-half months.

Tariq*, a resident of Lahore, was at work in Lahore’s Gulberg II area when television channels, almost in unison, broke the news of Imran’s arrest on May 9. He barely paid any attention to it though. “We all knew it was going to happen sooner or later.”

“But then,” he recalled to Dawn.com, “they started running footage of the protests; everything was burning and within a few minutes, we were told to go back home.”

The first thing Tariq did was call his younger brother. The duo, hailing from Khyber Pakhtunkhwa’s Shangla, has been living at a hostel in Lahore for the past few years; one earns while the other studies.

But the phone kept ringing. Tariq grew more anxious as dusk settled atop the walled city. After a dozen unanswered calls, he made his way to Liberty Chowk — the nucleus of Lahore and the protests that day — but his brother was nowhere in sight.

After a search of four days — which felt excruciatingly longer — he received a call from an unknown number. In the brief conversation that Tariq said skipped the formalities of an introduction, he was told to come to the Lahore Anti-Terrorism Court the next day. Feeling unsure and helpless, he made his way to the overcrowded ATC on May 14. Despite the swarm of families, Tariq spotted his younger brother who stood subdued in a queue of young men. But he couldn’t get close enough to talk to him.

In the coming days, Tariq would make multiple visits to the court for his brother but return home alone. And then one day, he got a call from a policeman informing him that his brother was being held at the Camp Jail.

“But when I visited the prison the next day, the officials said he wasn’t there anymore. Upon my insistence, one of the jail officials retrieved a list from his pocket and said my brother had been handed into military custody,” he recalled. “They said he was implicated for attacking the Lahore Corps Commander’s House.”

This was the last time he heard about his brother for several days.

Salima*, another resident of Lahore, said her son was arrested by “Punjab Police officials and plain-clothed men” from a hospital on the night of May 18. “They said his call data record from May 9 showed he was near the Lahore Corps Commander’s House.

“He had just gone out to get some groceries that day,” she insisted.

Salima said her son was taken to the Factory Area Police Station after the arrest and presented before an ATC the next day. “He was then shifted to the Camp Jail. But when we went to meet him there, we were told that he had been handed over into the custody of the army,” she told Dawn.com.

Then came the silence.

Sultan*, whose son has been in military custody for more than 352 days, said he feels more helpless every passing day.

“I searched for him tirelessly … went from one police station to the other. And then I thought that ’agar zinda hoga to wapis ajayega (he will come back if alive)’,” the father said.

He eventually found out that his son was arrested on May 21 for allegedly attacking the FC Fort in Lower Dir. “The police said they had a photograph of him inside the building,” Sultan said, adding that he didn’t hear about his son for over a month after the arrest.

“I have been driving cement trucks for a year to make ends meet … I am tired now,” the octogenarian father said.

Military calls

Both Tariq and Salima, like other families Dawn.com spoke to, received a call from the military more than — at least — 30 days later after the accused was handed into military custody for investigation. They were given a time and location for a meeting with the accused and told to engage a lawyer.

“We were allowed to meet for 15 minutes in the presence of uniformed officers,” Tariq said**. “My brother looked very weak … sunken eyes and a bony face … I could barely recognise him.”

The meeting, he described, was held inside a small room with a few chairs and a desk. “When my brother was brought inside the room, his face was covered with a black cloth and his hands were cuffed at the back. The cloth eventually came off and so did the handcuffs, but the officials never left the room.”

Hamza*, a resident of KP’s Chakdara, recalled a similar setting from the first meeting with his brother, who is in military custody in Malakand**.

He was led towards a room after meandering his way through the checks. “A few minutes later, two officers brought my brother — his face covered with a black cloth — inside. He had lost a lot of weight and his usually trimmed beard now resembled a bush,” Hamza told Dawn.com.

His brother was arrested from outside their family’s shop on May 22 for allegedly attacking the FC Fort in Lower Dir and was handed into military custody a week later. “The police said they had a video in which he could be seen inside the building … he had not even touched or damaged anything,” he insisted.

Sultan got a call 33 days after his arrest, and found out his son was in Peshawar. Soon afterward, the father and son were reunited, albeit briefly, as their meetings began** — first in Tirmergara, now in Malakand.

Recalling their first meeting, Sultan said his son had lost weight, had dark circles and an overgrown beard. “My heart was crying when I saw him,” he said.

These meetings, as the families told Dawn.com, have since continued once a week. Sometimes, video calls are also allowed. Initially, food from outside the prison was not allowed, but that restriction has been removed now.

On April 8, the federal government revealed to the Supreme Court that 20 persons who were arrested and convicted for their involvement in the May 9 violence had been released so that they could celebrate Eidul Fitr with their families after they served a major part of their sentence while the remaining period of their punishment was remitted by the army chief.

Among them, four belonged to KP while all other 16 hailed from Punjab. It said 20 persons were awarded sentences of one year, of which 17 had served a period of 10.5 months and three persons had served a period of 9.5 months. While none of the persons served a full period of one year, upon confirmation of their sentence, the remaining period of their punishment was remitted by the chief of army staff (COAS) under Section 143(1)(i) of the Pakistan Army Act, 1952.

This development has given families of the remaining persons in custody hope while battling their frustration.

• What happened on May 9
• Battleground Cantt
• Families of the accused
• Military calls
• Trials under the Secrets Act
• Controversial amendment
• Scope for appeal
• Prolonged detention
• All eyes on SC

Trials under the Secrets Act

The trials of Hamza and Tariq’s brothers as well the other accused have concluded. According to Attorney-General for Pakistan (AGP) Mansoor Usman Awan, military courts have completed recording of evidence and have to announce orders, but can not do so in view of the restraining order passed by the apex court to not convict or acquit any suspect until the pendency of government-instituted intra-court appeals.

The families, however, have no knowledge of what went on inside the military courts nor have they been provided with any case-related documents.

“No paper/file was allowed to enter or exit those fenced boundaries,” said Rehana*, whose husband has been in the army’s custody in Lahore for almost a year now.

The reason behind the secrecy surrounding the trials is the Official Secrets Act, a colonial-era law that deals with the disclosure of information and espionage under which the accused have been charged. This was corroborated by the request for custody of civilians sent to courts by the military.

Section 2(1)(d) of the Army Act grants the military powers to try civilians accused of “seducing or attempting to seduce any person from duty or allegiance to government” or having committed an offence under the Official Secrets Act. But before that, permission needs to be taken from a court for custody, as mentioned in the Code of Criminal Procedure.

Those written applications which Dawn.com has seen, submitted by the military in courts seeking custody of civilians, stated that the suspects “are found guilty of offences under sections 3, 7 and 9 of the Official Secrets Act, 1923 read with Section 2(1)(d) of the Pakistan Army Act, 1952”.

The courts had subsequently accepted the request under Section 549(3) of the CrPC and directed the jail authorities to hand over the suspects to the army.

Before the military trial of a civilian commences, the commanding officer (CO) submits a request to the sessions judge seeking the custody of the suspects.

“An investigation report, prepared by the police, is also presented in court after which the judge approves the transfer of custody,” retired Lt Col advocate Inamur Rahim said, elaborating that the general officer commanding (GOC) of the area — who already has a warrant issued by either the army chief or the federal government — then constitutes the military court.

Under the Army Act and Article 10A (right to fair trial) of the Constitution, the accused is supposed to be given the choice to appoint a counsel, who is provided a charge sheet and “summary of evidence” 24 hours before the trial begins. Similarly, during the trial, the prosecution’s witnesses appear in court and the defence has the right of both cross-examination and presenting witnesses.

Once the proceedings conclude, the verdict is reserved. The president then puts it down on paper with the sentencing. The accused is told “guilty or not guilty” in the next hearing. The document is then sent to the convening authority for confirmation after which the accused, in the final hearing, is told the sentencing.

Advocate M, who has represented three accused in military custody, elaborated further on the covertness of the trial. “Before the proceedings began, I was given clear instructions that the details of the hearing could not be disclosed in public,” he said.

This is also mentioned in Section 14 (Exclusion of public from proceedings) of the Official Secrets Act, which states: “In addition and without prejudice to any powers which a Court may possess to order the exclusion of the public from any proceedings if, in the course of proceedings before a Court against any person for an offence under this Act or the proceedings on appeal, or in the course of the trial of a person under this Act, the application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the safety of the State, that all or any portion of the public shall be excluded during any part of the hearing, the Court may make an order to that effect, but the passing of sentence shall, in any case, take place in public.”

Same is the case with documents. No one, not even the lawyers, is supposed to be given the case file — which includes the charge sheet and evidence. “We were shown the papers but were not allowed to take them home, get photocopies or even take pictures,” Advocate M recalled.

“At most, they allow you to take important notes in a diary. But that is it,” he said.

All the 10 lawyers Dawn.com reached out to recounted a similar experience. They shared that when first called by the military, the defence counsels were asked to bring three documents with them: identity card, power of attorney and bar licence.

None of the lawyers Dawn.com spoke to commented on the proceedings due to procedure.

Advocate A, who represented two people in military custody in Lahore, said the accused and their families were asked if they wanted to appoint a lawyer. “If they said no, the army appointed an ‘accused’s friend’, a major who would represent the civilian in the trial.

“But for those who chose to get a lawyer of their choice, they provided the names of the same to the CO who would then call the nominated counsel and ask them if they were willing to represent the accused. Upon saying yes, we were given a time and location where the trial was going to be held,” he said.

At the location**, he continued, the lawyers were first given a briefing on the rules and regulations of the trial after which the proceedings commenced.

The rest of the procedure, the lawyers said, was almost similar to that of a civilian trial.

“On the first day of the hearing, charges are read out loud and the accused is asked if he pleads guilty or not. Even if the latter’s response is guilty, the trial commences on the presumption of innocence,” Advocate A told Dawn.com. Next comes the cross-examination of witnesses following which the final arguments occur and the verdict is then reserved.

But unlike civilian courts where cases are generally drawn out, these military trials were speedy and were wrapped up in less than 10 hearings, with the verdicts now awaited.

Most of the families and lawyers Dawn.com reached out to claimed that the accused were met with stringent conditions behind bars. Unlike civilian jails where prisoners are allowed outside their cells from sunrise to sunset, the people in military detention were only taken out of their cells twice a day, for 15 minutes, in the presence of a military personnel.

It should be noted that during Supreme Court hearings on military trials in June and July, the AGP had toldthe court that all those in custody were being provided health facilities and were “kept in military units, not with hardened criminals”.

Advocate R, who represented three persons in military custody, stated that all of the accused wanted to be shifted to civilian prisons.

He also claimed that most of the accused persons were those whose videos or photos inside army installations had gone viral. “Most of them were never involved in arson or rioting in the first place,” he alleged. Advocate M doubled down on the claim that people handed over into military custody were not directly involved in the acts of violence.

Advocate X, who has fought cases in military courts, gave a “simple explanation” for the way people were handed over into military custody. “It needs to be understood that a military court is not meant to try ordinary civilians; it is either for the enemies or the army’s own people suspected of treason.

“It appears that the military did not have SOPs for civilians on such trials, so they followed the same procedures that are used to try their own men,” he said.

Other lawyers concurred.

• What happened on May 9
• Battleground Cantt
• Families of the accused
• Military calls
• Trials under the Secrets Act
• Controversial amendment
• Scope for appeal
• Prolonged detention
• All eyes on SC

Controversial amendment

Interestingly, the Official Secrets Act was amended in August 2023, nearly two months after most of the arrests had been made.

On August 1 last year, the coalition government, just days before the completion of its five-year term, quietly got a bill to amend the century-old Secrets Act approved by the National Assembly. It was tabled in the lower house of the Parliament through a supplementary agenda on private members’ day — when bills are moved by members in their personal capacity and not ministers alone — through a supplementary agenda and was passed the same day despite protests from both sides of the aisle.

The bill was subsequently tabled in the upper house of the Parliament the next day where it was again met with fierce opposition. However, the Senate chairman referred it to the relevant standing committee even though lawmakers demanded that the proposed legislation be put to vote as they wanted to reject it.

Finally, on Aug 6 — a Sunday — the bill to amend the Official Secrets Act, 1923, was passed by the Senate, albeit with a few changes to the original amendments made by the standing committee.

After securing the approval of the Senate, the ‘amended’ bill was again presented in the NA on Aug 7. This time, it sailed through the lower house. Now, the bill only needed the president’s assent to become a law.

On Aug 19, it had emerged that the president at that time, Dr Arif Alvi, had given his assent to the bills to amend the Official Secrets Act and the Army Act. However, in a startling turn of events, Alvi denied assenting to the changes in the laws in a post on social media platform X.

“As God is my witness, I did not sign Official Sec­rets Amendment Bill, 2023 and Pakistan Army Ame­ndment Bill, 2023 as I disagreed with these laws,” the president said in his tweet.

Hours after Alvi’s statement, a gazette notification issued by the Senate Secretariat surfaced, stating that the two bills were “deemed to have been assented by the president”.

Alvi’s allegations, on the other hand, stand where they are. They haven’t been taken up in any court yet.

It must be noted that Section 3 of the Official Secrets Act, which appears to be the main provision under which the accused in military custody have been charged, was renamed from “penalties for spying” to “offences”, with the addition of photography through drone cameras of prohibited areas as a crime.

Other changes made to the law included the broadening of the definition of military installations and bringing digital and modern means of communication into the act’s ambit. Moreover, clauses related to prohibited areas were also amended and it would be an offence if someone was to “access, intrude, approach or attack any military installation, office, camp office or part of building”.

Earlier, the offence was restricted to such movement during the time of war only; however, the amendment has expanded this to peacetime as well.

Similarly, the definition of “enemy” introduced in the law states: “Any person who is directly or indirectly, intentionally or unintentionally working for or engaged with a foreign power, foreign agent, non-state actor, organisation, entity, association or group guilty of a particular act… prejudicial to the safety and interest of Pakistan.”

The new amendments also empowered the Federal Investigation Agency (FIA) and officials of intelligence agencies to investigate suspects for violation of the Official Secrets Act. It states: “An investigating officer under this act shall be an officer of the Federal Investigation Agency not below the rank of BPS-17 or equivalent. The said officer shall be designated by the Director General [of] FIA for the purpose of investigation. If the Director General [of] FIA deems necessary, he may constitute a joint investigation team (JIT), convene by such officer and consisting [of] such other officers of intelligence agencies as he may appoint.”

The JIT is supposed to complete the investigation in 30 working days and the challan would be submitted to the special court through a public prosecutor.

The law also deals with the admissibility of the evidence and states: “All material collected during the course of inquiry or investigation, including electronic devices, data, information, documents, or such other related material, which facilitates the commission of any offence under this act, shall be admissible.”

A mere perusal of the amendments suggests that they were drafted while keeping in mind the May 9 violence. “A person cannot be charged and punished under a law in retrospective effect,” Advocate B said. “These trials undermine civilian courts and trust in the judiciary. It will set an extremely dangerous precedent if allowed.”

Anchorperson Hafeezullah Niazi, father of prominent PTI leader in military custody Hassaan Niazi, was of a similar opinion. “How can it be that the judge, jury and the prosecutor are all from the army?” he asked.

“We don’t know what to do, or who to reach out for appeals. My son is stuck in this tug of war between the military and Imran Khan,” the father rued.

• What happened on May 9
• Battleground Cantt
• Families of the accused
• Military calls
• Trials under the Secrets Act
• Controversial amendment
• Scope for appeal
• Prolonged detention
• All eyes on SC

Scope for appeal

The lawyers Dawn.com spoke to said that the verdict can be challenged in an army appellate court within 40 days of the judgment. The army chief or an officer of the brigadier rank (assigned by the COAS) decides on the appeal. Once a decision is taken there, the aggrieved can approach the high court but with a petition that challenges the constitutionality/framework of military trials.

There is no scope for a direct appeal.

Section 133B of the Army Act says: (1) Any person to whom a court-martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service after the commencement of the Pakistan Army (Amendment) Act, 5 [1992], may, within forty days from the date of announcement of finding or sentence or promulgation thereof, whichever is earlier, prefer an appeal against the finding or sentence to a Court of Appeals consisting of the Chief of the Army Staff or one or more officers designated by him in this behalf, presided by an officer not below the rank of Brigadier in the case of General Court-Martial or Field General Court Martial or District Court-Martial or Summary Court-Martial convened or confirmed or countersigned by an officer of the rank of Brigadier or below as the case may be, and one or more officers, presided by an officer not below the rank of Major General in other cases, hereinafter referred to as the Court of Appeals:

Provided that where the sentence is awarded by the court-martial under an Islamic law, the officer or officers so designated shall be Muslims: Provided further that every Court of Appeals may be attended by a judge advocate who shall be an officer belonging to the Judge Advocate General’s Department, Pakistan Army, or, if no such officer is available, a person appointed by the Chief of the Army Staff.

(2) A Court of Appeals shall have power to —

(a) accept or reject the appeal in whole or in part; or

(b) substitute a valid finding or sentence for an invalid finding or sentence; or

(c) call may witness, in its discretion for the purpose of recording additional evidence in the presence of the parties, who shall be afforded an opportunity to put any question to the witness; or

(d) annul the proceedings of the court-martial on the ground that they are illegal or unjust; or

(e) order retrial of the accused by a fresh court; or

(f) remit the whole or any part of the punishment or reduce or enhance the punishment or commute the punishment for any less punishment or punishments mentioned in this Act.

(3) The decision of a Court of Appeals shall be final and shall not be called in question before any court or other authority whatsoever.

However, in his press conference on June 26, the army’s spokesperson, Maj Gen Ahmed Sharif Chau­dhry, had said that the accused being tried by the military were entitled to legal rights, including the right to have a lawyer of their choice and the right to appeal before the high courts and the Supreme Court.

Retired Lt Col Rahim told Dawn.com that while an appeal against the verdict can be filed within 40 days, the process was not as simple; the army’s court of appeal is established under its own hierarchy. For example, if a brigadier or major general has announced a verdict, the head of the appellate court would be a lieutenant general.

However, he continued, it is high time now that an “independent” court of appeals comprising “judicial minds” is formed.

“When the British Army returned from India after World War II in 1945, they were given a right of appeal. For that, a court of appeals comprising retired judges was formed. The army could indeed punish its own, but the appeals would be heard by an appellate court comprising people of judicial minds because military courts are command-oriented.

“Naturally, even members of the appellate courts look towards the command for their career development. And if the command has given a decision, it would be very difficult for them to say something different than that. Therefore, it was decided that the appellate court should be independent of the command,” he elaborated.

This practice, Rahim said, was also adopted by other Commonwealth countries.

Supreme Court’s Justice Ayesha A. Malik, in her concurring note in the military trials case, terms the absence of an independent right to appeal one of the “glaring issues that arise within a military, from which it is clear that there is a lack of impartiality and independence within a military trial and the concept of fairness and due process is missing from the procedure”.

“The basic principle of the independence of the judiciary is that everyone is entitled to be tried by the ordinary courts or tribunals established under the law and the trial of a citizen by a military court for an offence which can be tried before the courts established under Article 175 (Establishment and Jurisdiction of Courts) of the Constitution offends the principles of independence of the judiciary and of fair trial,” she highlighted.

“In terms of the constitutional guarantee of fair trial and due process, the trial of a civilian before a military court does not meet the requirements” of the fundamental right provided under Article 10-A of the Constitution, Justice Ayesha noted.

• What happened on May 9
• Battleground Cantt
• Families of the accused
• Military calls
• Trials under the Secrets Act
• Controversial amendment
• Scope for appeal
• Prolonged detention
• All eyes on SC

Prolonged detention

According to Inamur Rahim, who was also formerly attached with the military’s JAG [Judge Advocate General] branch, the trial of an accused person, as per the military rules, should begin within eight days of being handed into custody.

“If, for some reason, the trial doesn’t begin, then the commanding officer [every area/jurisdiction has a CO] has to prepare an ‘eighth-day delay report’ and give reasoning. If eight more days pass, then the brigade commander has to write a report.”

Section 74 of the Army Act states: “Every commanding officer shall take care that a person under his command when charged with an offence is not detained in custody for more than forty-eight hours after the committal of such person into custody is reported to him, without the charge being, investigated, unless investigation within that period seems to him to be impracticable having due regard to the public service. Every case of a person detained in custody beyond a period of forty-eight hours and the reason therefore shall be reported by the commanding officer to the officer to whom application is to be made to convene a general or District court martial for the trial of the person charged: Provided that in reckoning the period of forty-eight hours all public holidays shall be excluded.”

Section 75: “In every case where any such person as is mentioned in Section 73 (Custody of offenders) as is not on active service remains in custody for a longer period than eight days, without a court martial for his trial being ordered to assemble, a special report giving reasons for the delay shall be made by his commanding officer in the manner prescribed and a similar report shall be forwarded at intervals of eight days until a court martial is assembled or such person is released from custody.”

Rahim said “if the trial still does not begin for some reason, then the matter will go to the General Officer Commanding (GOC) who will write a report after 24 days”.

“If the trial doesn’t begin after 32 days, a report titled ‘32 days delay report’ is prepared … the commanding officer will go to the accused and prepare a petition on the latter’s behalf which would be sent to the judge advocate general,” explained Rahim.

“The judge advocate will go through the petition and, if he deems it fit, will order the accused’s release subject to re-arrest,” he added.

In the case of the May 9 trials, while at least 102 people were in custody of the military by June 23, the trials hadn’t begun according to the AGP on June 27 as the “cases were at the investigation stage”.

These comments were made during a Supreme Court hearing after several petitions challenging the trials of civilians in military courts were brought to the apex court by former CJP Jawwad S. Khawaja, Aitzaz Ahsan, Karamat Ali, Imran Khan and others.

Former CJP Khawaja argued that Section 2(1)(d)(i) and (ii) of the Pakistan Army Act were inconsistent with constitutional fundamental rights and should be invalidated, seeking a suspension of proceedings against civilians based on these sections. Ahsan aimed to prevent civilians arrested for involvement in the May 9 violence from being tried in military courts. Imran sought a declaration against the arrest, investigation, and trial of civilians under specific laws during peacetime.

Earlier the same month, a nine-member bench, headed by then-CJP Umar Ata Bandial, was formed to hear the pleas. After Justice Qazi Faiz Isa expressed dissatisfaction with the bench’s composition, a seven-member bench resumed hearing the petitions. The revised proceedings concluded with Justice Bandial directing the Attorney General for Pakistan (AGP) Mansoor Usman Awan to provide a list of individuals detained under various laws relating to the May 9 violence.

On June 23, the AGP informed the court that 102 individuals were held in military custody, adding that no women, juveniles, advocates, or journalists were among them.

Dawn.com reached out to the AGP for further understanding, but he said he could not comment because the matter is sub judice.

On June 26, Justice Bandial said: “I expect that no military trial [of civilians] will be conducted while proceedings are ongoing.”

ISPR DG Maj Gen Ahmed Sharif Chaudhry, on the other hand, in a presser later in the day, mentioned that proceedings against the 102 people handed over for trial under the army act were already underway. He also revealed the military had sacked three officers — including a lieutenant general — and concluded disciplinary proceedings against 15 officers, including three major generals and seven brigadiers, over the events of May 9.

However, when the court reconvened the following day on June 27, the AGP informed the court that trials of civilians in military custody had not yet commenced as the cases were still under investigation. He assured the court that none of them would face charges that could lead to capital punishment or lengthy sentences.

Subsequently, CJP adjourned the hearing indefinitely.

The hearing resumed 20 days later on July 18.

A day before the hearing, the federal government asserted that trying individuals involved in May 9 incidences under the Army Act was an “appropriate” response.

However, CJP Bandial observed that subjecting civilians to military courts’ procedures contradicted their constitutional rights, highlighting concerns about the lack of transparency and judicial review in military court verdicts.

Even though, in the next hearing on July 19, the apex court allowed the AGP to seek new instructions from the government regarding the provision of appeal against sentences handed down by military courts to those found guilty, the CJP stated that military trials should not start without informing the SC — a point the AGP assured the court of on August 3.

The court then postponed further proceedings for an indefinite period.

Finally, on Oct 23, in a widely hailed judgement, the apex court declared the military trials of civilians, for their alleged role in attacks on army installations, unconstitutional by a majority of 4-1.

Led by Justice Ijazul Ahsan, the bench emphasised that such cases should be tried in criminal courts. The ruling deemed provisions of the Pakistan Army Act related to these trials as “unconstitutional” and without legal effect.

The people, however, remained in military custody until Dec 13 when the SC suspended the operation of its previous Oct 23 order that had deemed the military trial of 103 civilians unconstitutional, in a majority decision of 5-1.

This allowed the trials to begin. The appeals, seeking suspension of the earlier order, were filed by various federal and provincial authorities.

According to Advocate B, as soon as the SC declared military trials of civilians unconstitutional, “the custody of the civilians by law should have been immediately handed over to ordinary courts”.

“During the two-month period, a number of writ petitions were filed in the Lahore High Court by various family members seeking the transfer of these suspects into civilian custody. But the high courts said they could not decide on them because the matter was being heard in the SC.”

• What happened on May 9
• Battleground Cantt
• Families of the accused
• Military calls
• Trials under the Secrets Act
• Controversial amendment
• Scope for appeal
• Prolonged detention
• All eyes on SC

All eyes on SC

Earlier this year, on January 28, a six-judge bench resumed hearings on civilians’ military trials. A petition was filed to bar governments from hiring private counsel while Justice Sardar Tariq Masood referred appeals in the military court case back to a three-judge committee for a larger bench reconstitution due to concerns about bench formation under the Supreme Court (Practice and Procedure) Act, 2023.

The court ordered the AGP to furnish the details of the verdicts reserved by the military courts by March 28 after former CJP Khawaja, one of the petitioners challenging the military trials, requested an early hearing of the appeals, contending that the continued presence of civilians in military custody was “beyond compensation”.

On March 28, SC conditionally allowed military courts to pronounce reserved verdicts, directing that judgements be announced in cases in which the nominated suspects could be released before Eid.

In the most recent hearing on April 24, the apex court referred a set of appeals back to a three-judge committee to form a larger bench.

Senior counsel Faisal Siddiqui also requested the court to order the federal government to place on record the orders passed by the military trial court for the perusal of the apex court, adding that 85 accused were still under detention and therefore it required urgent hearing into the matter to decide their fate.

More than 365 days later, when the country witnessed one of the most widespread agitation against the state in its modern history, the highest court in the country is deliberating on the constitutionality of military courts, the families of the remaining 85 accused are desperately awaiting some good news, and the rest of Pakistan is watching with almost a pin-drop silence around these trials.

The question remains: what will these trials come to mean for the country’s judicial system?

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