P L D 2025 Supreme Court 482 (PLP)
SHUHADA FORUM, BALOCHISTAN through Patron in Chief, Nawabzada Jamal Raisani, Quetta Cantt. and others Versus Justice (R) JAWWAD S. KHAWAJA and others
| Citation | P L D 2025 Supreme Court 482 (PLP) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Amin-ud-Din Khan, Senior Judge, Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhter Afghan and Shahid Bilal Hassan, JJ |
| Parties | SHUHADA FORUM, BALOCHISTAN through Patron in Chief, Nawabzada Jamal Raisani, Quetta Cantt. and others Versus Justice (R) JAWWAD S. KHAWAJA and others |
| Primary Law | (a) Pakistan Army Act (XXXIX of 1952), (c) Constitution of Pakistan, (d) Pakistan Army Act (XXXIX of 1952) |
Q1: What are the key laws and sections cited in P L D 2025 Supreme Court 482 (PLP)?
This judgment primarily cites: (a) Pakistan Army Act (XXXIX of 1952), (c) Constitution of Pakistan, (d) Pakistan Army Act (XXXIX of 1952), (b) Constitution of Pakistan as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 2025 Supreme Court 482 (PLP)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Amin-ud-Din Khan, Senior Judge, Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhter Afghan and Shahid Bilal Hassan, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 2025 Supreme Court 482 (PLP) (SHUHADA FORUM, BALOCHISTAN through Patron in Chief, Nawabzada Jamal Raisani, Quetta Cantt. and others Versus Justice (R) JAWWAD S. KHAWAJA and others). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Anis Muhammad Shahzad, Advocate-on-Record.
- Jawaid Masood Tahir Bhatti, Advocate-on-Record.
- Khawaja Haris Ahmad, Senior Advocate Supreme Court
- Assisted by Miss Zaynib Chaudhry, Advocate and Hamza Khalid, LLB (Hons).
- Sikandar Bashir Mohmand, Advocate Supreme Court.
- Tariq Aziz, Advocate-on-Record.
- Assisted by Messrs Abdullah Noor, Advocate Hamza Azmat Khan, Advocate, Barrister Khizer Hayat Khan, Barrister Imran Khan
- and Muhammad Arsal Kamran Advocate (in I.C.As. Nos. 15 to 19 of 2023).
- Shumail Butt, Advocate Supreme Court. (through video link from Peshawar).
- Mehmood A. Sheikh, Advocate-on-Record (in I.C.A. No. 5 of 2023).
- Khwaja Ahmad Hosain, Advocate Supreme Court, Assisted
- by Ms. Rida Hosain, Advocate (in I.C.As. Nos. 5, 6, 14 and 17 of 2023).
- Hamid Khan, Senior Advocate Supreme Court.
- Muhammad Waqar Rana, Advocate Supreme Court.
- Ajmal Ghaffar Toor, Advocate Supreme Court.
- Syed Rifaqat Husain Shah, Advocate-on-Record (in I.C.As. Nos. 5, 6, 11, 15 and 20 of 2023).
- Sardar Muhammad Latif Khan Khosa, Sr. Advocate Supreme Court.
- Barrister Ch. Aitzaz Ahsan, Sr. Advocate Supreme Court.
- Shahbaz Khan Khosa, Advocate Supreme Court.
- Assisted by Barrister Zunaira Fayyaz, Sozain Jehan, Ghulam Murtaza Malik, Syed Mehmood ul Hassan Gilani and Usman Zakir Abbasi, Advocates (in I.C.As. Nos. 19, 20 and 22 of 2023).
- Salman Akram Raja, Advocate Supreme Court.
- Assisted by Asad Rahim Khan, Malik Ahsan Mehmood, Atira Ikram, Raja Hamza Anwar, Wyena Qureshi, Minahil Fatima, M. Ali Talib, Muhammad Shakeel Mughal, Muhammad Hamza Aslam, Sardar Ahsan Raza and Malik Ghulam Sabir, Advocates (in I.C.As. Nos.21 and 25 of 2023).
- Faisal Siddiqui, Advocate Supreme Court (in I.C.As. Nos. 10, 16 and 24 of 2023).
- Uzair Karamat Bhandari, Advocate Supreme Court.
- Dr. Usman Mirza, Advocate-on-Record.
- Assisted by Ali Uzair Bhandari, Advocate (in I.C.As. Nos. 19, 20 and 22 of 2023).
- Abid S. Zuberi, Advocate Supreme Court.
- Ms. Bushra Qamar, Advocate Supreme Court.
- Assisted by Amna Khalili, Saif Shahid and Ashar Khan, Advocates.
- Muqtedir Akhtar Shabbir, Advocate Supreme Court (via video link from Lahore) (in I.C.A. No. 12 of 2023).
- Zaman Khan Vardag, Advocate Supreme Court, in-person (via video link from Lahore) (in person in I.C.A. No. 13 of 2023).
- Mian Rauf Atta, Advocate Supreme Court/President and Muhammad Aurangzeb Khan, Advocate Supreme Court/Acting Secretary.
Headnotes / Summary
Ss. 2(1)(d)(i), (ii) & 59(4)
International Covenant on Civil and Political Rights (ICCPR), Art. 14(5)
Constitution of Pakistan, Art.8(5)
Supreme Court Practice and Procedure Act (XVII of 2023), S. 5
Court Martial of civilians, vires of
Matter pertained to occurrence of 09-05-2023, whereby followers of a political party ransacked/attacked military installations situated in cantonment areas in different cities of Pakistan
Supreme Court in exercise of jurisdiction under Article 184(3) of the Constitution declared the provisions of sections 2 (1) (d) (i), (ii) & 59(4) of Pakistan Army Act, 1952 ultra vires the Constitution and of no legal effect
Attack on Corps Commander House, Lahore rendered the command dysfunctional for at least 4 to 5 hours creating a highly dangerous situation
All fundamental rights enshrined and envisaged under the Constitution were subject to reasonable restrictions imposed by law
Peaceful assembly, association or public demonstration/protest within the bounds and precincts of reasonable restriction imposed by law is not prohibited as long as it is without violating or breaking the law or taking the law in one's hands
Constitutional Bench of Supreme Court restored the provisions of Pakistan Army Act, 1952, that were struck down by means of judgment passed by Supreme Court in original proceedings
Constitutional Bench of Supreme Court sensitized the need of legislative changes, which would also be compliant to the requirements laid down under International Covenant on Civil and Political Rights (ICCPR) for maintaining and preserving Constitutional and societal norms in existing legal framework
Constitutional Bench of Supreme Court referred the matter to Government/Parliament for considering and making necessary amendments/legislation in Pakistan Army Act, 1952 and allied Rules in order to provide an independent right of appeal in High Court against conviction awarded to persons by Court Martial/Military Courts under the provisions of sections 2(1) (d) (i), (ii) & 59 (4) of Pakistan Army Act, 1952
Intra Court Appeal was allowed. [Majority view]
Art. 10A
Due process of law and fair trial
Scope
Independent right of appeal before an independent forum is also a basic limb of doctrine of due process and right to a fair trial, as enshrined under Article 10A of the Constitution.
Art. 10A
Due process of law and fair trial
Provisions merely accentuating right to a fair trial and due process in any statute and its actual application and proper implementation during trial are two distinct features and situations
If an independent right of appeal is provided in High Court for challenging original order or internal departmental appellate order of conviction, then High Court in exercise of its appellate jurisdiction as conferred under the provisions of Criminal Procedure Code, 1898, may examine whether an appeal and fair opportunity to defend the charges was afforded to the convict; whether sufficient evidence was available to substantiate the charges; and whether proper procedure in trial was followed in letter and spirit.
Ss. 2(1)(d)(i), (ii) & 59(4)
International Covenant on Civil and Political Rights (ICCPR), Art. 14 (5)
Constitution of Pakistan, Arts. 2A, 8(3)(a), 9, 10, 10A, 19A, 25, 175(3), 227(1) & 245
Supreme Court Practice and Procedure Act (XVII of 2023), S. 5
Court Martial of civilians, vires of
Matter pertained to occurrence of 09-05-2023, whereby followers of a political party ransacked/attacked military installations situated in cantonment areas in different cities of Pakistan
Supreme Court in exercise of jurisdiction under Article 184(3) of the Constitution, declared the provisions of sections 2(1)(d)(i), (ii) & 59(4) of Pakistan Army Act, 1952 ultra vires the Constitution and of no legal effect
The Pakistan Army Act, 1952 ('PAA') is a disciplinary statute, relates to members of the Armed Forces, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline amongst them, as provided by clause (a) of sub-Article (3) of Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973 ('Constitution'), hence, does not offer fundamental rights to persons under the military discipline
To the contrary, clause (d) added to subsection (1) of section 2 of the PAA relates to persons not otherwise subject to the PAA ('Civilians')
It does not relate to members of the Armed Forces, nor serves the aforesaid purpose, as provided by sub-clause (a) of sub-Article (3) of Article 8 of the Constitution, as such, it does not qualify for exemption from fundamental rights, hence, cannot be retained as part of the PAA
Article 175 of the Constitution provides the establishment and jurisdiction of courts
It requires that in order to fully secure the independence of judiciary, it must be separated from executive in all respects
The courts martial comprising of executive, being outside the scope of Article 175(3) of the Constitution cannot prosecute the civilians
The trial of civilians by courts martial offends the fundamental principle of independence of judiciary, fundamental rights of security of person, safeguard as to arrest and detention, fair trial and due process, right to information, equality of citizens and Injunctions of Islam, as guaranteed by Articles 2A, 9, 10, 10A, 19A, 25 and 227(1) of the Constitution, respectively
Denial of right of appeal to civilians against the conviction and sentence by courts martial before an independent and impartial forum is also violative of fundamental right of fair trial and due process
The trial of civilians by courts martial presided over by active military officers, is violative of the recognized covenants of the United Nations Human Rights Commission ('UNHRC') as well as the International Covenant on Civil and Political Rights, 1966 ('ICCPR') and treaties, to which Pakistan is a signatory
The trial of civilians by courts martial is in excess of the functions assigned to the Armed Forces by Article 245 of the Constitution
Convictions and sentences awarded to civilians by Courts Martial for the occurrence of 09-05-2023 were without jurisdiction and were set aside
Accused under custody were to be treated as under-trial prisoners and their cases would be transferred to concerned Courts of competent jurisdiction for trial
Upon receipt of cases, the concerned Courts should proceed with their trials expeditiously and decide the same at the earliest in accordance with law
Persons who had completed/undergone their sentences or had been acquitted of the charge by Courts Martial or Forum of Appeal under Pakistan Army Act, 1952, would have the effect of their discharge under section 169 Cr.P.C.
Intra Court Appeal was dismissed. [Minority view]
Judgment & Decree
JAMAL KHAN MANDOKHAIL AND NAEEM AKHTER AFGHAN, JJ.
For the reasons to be recorded later on, we dismiss these appeals on the following grounds: (a) The Pakistan Army Act, 1952 ('PAA') is a disciplinary statute, relates to members of the Armed Forces, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline amongst them, as provided by clause (a) of sub-Article (3) of Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973 ('Constitution'), hence, does not offer fundamental rights to persons under the military discipline. (b) To the contrary, clause (d) added to subsection (1) of section 2 of the PAA relates to persons not otherwise subject to the PAA ('Civilians'). It does not relate to members of the Armed Forces, nor serves the aforesaid purpose, as provided by sub-clause (a) of sub-Article (3) of Article 8 of the Constitution, as such, it does not qualify for exemption from fundamental rights, hence, cannot be retained as part of the PAA. (c) Article 175 of the Constitution provides the establishment and jurisdiction of courts. It requires that in order to fully secure the independence of judiciary, it must be separated from executive in all respects. The courts martial comprising of executive, being outside the scope of Article 175(3) of the Constitution cannot prosecute the civilians. (d) The trial of civilians by courts martial offends the fundamental principle of independence of judiciary, fundamental rights of security of person, safeguard as to arrest and detention, fair trial and due process, right to information, equality of citizens and Injunctions of Islam, as guaranteed by Articles 2A, 9, 10, 10A, 19A, 25 and 227(1) of the Constitution, respectively. (e) Denial of right of appeal to civilians against the conviction and sentence by courts martial before an independent and impartial forum is also violative of fundamental right of fair trial and due process. (f) The trial of civilians by courts martial presided over by active military officers, is violative of the recognized covenants of the United Nations Human Rights Commission ('UNHRC') as well as the International Covenant on Civil and Political Rights, 1966 ('ICCPR') and treaties, to which Pakistan is a signatory. (g) The trial of civilians by courts martial is in excess of the functions assigned to the Armed Forces by Article 245 of the Constitution.
2. The convictions and sentences awarded to civilians by the courts martial for the occurrence of 9th May, 2023, are declared to be without jurisdiction, hence, the same are set aside. They shall be dealt with as follows: (i) The accused under custody shall be treated as under-trial prisoners. Their cases stand transferred to the concerned courts of competent jurisdiction for trial. Upon receipt whereof, the concerned courts should proceed with their trials expeditiously and decide the same at the earliest, in accordance with law. (ii) The persons who have completed/undergone their sentences or have been acquitted of the charge by the courts martial or Forum of Appeal under the PAA, shall have the effect of their discharge under section 169 of the Code of Criminal Procedure ('Cr.P.C.'). Sd/- Judge Sd/- Judge MH/S-20/SC Appeals allowed.