A Supreme Court constitutional bench raised concerns on Thursday regarding the specific trial of civilians implicated in the May 9 riots under military courts, questioning such an approach as inconsistent with established legal precedents.

On December 13, the bench conditionally permitted military courts to issue rulings for 85 civilians still detained for their alleged roles in the riots. A week later, military courts sentenced 25 individuals to prison terms ranging from two to 10 years for their participation in violent attacks on military facilities during the riots. Another 60 civilians received similar sentences for their involvement in the nationwide unrest.

Last week, the mercy petitions of 19 convicts associated with the May 9 incidents were accepted by the courts on humanitarian grounds.

Violent protests broke out on May 9, 2023 when jailed former prime minister Imran Khan was arrested from within the premises of Islamabad High Court. Protesters attacked state buildings and military installations. Khan and his party denies involvement in such protests and called for the formation of a judicial commission to check the veracity of claims.

On Tuesday, Justice Jamal Khan Mandokhail while hearing on appeals against the military trial of civilians asserted that it is not within the executive’s authority to assume “judicial roles.”

A seven-member constitutional bench, led by Justice Aminuddin Khan, continued its examination of the intracourt appeal regarding the decision to prosecute civilians in military courts on Thursday.

At the outset of the session, Justice Syed Hasan Azhar Rizvi noted that while the country has experienced terrorist attacks in the past, those responsible were tried in civilian courts.

He questioned the rationale behind trying individuals involved in the May 9 events in military courts, asking, “Where [were the hearings for those] attacks held?” He emphasised that if terrorists were prosecuted in ordinary courts, it raises the question of why those involved in the May 9 riots should face military trials.

Justice Mandokhail raised concerns during the hearing about the discrepancies between decisions made in military courts and those in antiterrorism courts, questioning whether “special evidence” was being used in military trials.

Advocate Khawaja Haris, representing the defence ministry, cited a five-member Supreme Court ruling that deemed military trials of civilians null and void. He argued that the ruling underscored fundamental rights that had been clearly articulated.

The constitutional bench expressed skepticism about the military prosecution of specific individuals linked to the May 9 riots. Justice Mussarat Hilali inquired, “Where was the decision made regarding who would be tried in military courts and who would not?”

Justice Muhammad Ali Mazhar questioned the rationale behind the varied legal proceedings for suspects involved in the May 9 riots, noting that the first information report against them was filed collectively. He asked, “Where did the distinction arise for some to be tried in antiterrorism courts while others faced military courts?”

Justice Naeem Akhtar Afghan also probed the defence ministry’s lawyer about the total number of individuals accused in connection with the May 9 events and whether any antiterrorism court orders had been issued against those tried by military courts.

Moreover, Justice Mandokhail sought clarification on who initiated the process of detaining individuals under military custody. Justice Hilali requested a precedent for civilian military trials conducted without suspending the Constitution.

Justice Rizvi highlighted past terrorist attacks on various military installations and questioned, “Where were the hearings for these attacks held?”

In the proceedings, Justice Rizvi pointed out a previous case involving a conspiracy to hijack the army chief’s plane, which was tried in a civilian court. He questioned the rationale behind the military trials for those involved in the May 9 events, asking, “If that trial was conducted in ordinary courts, what did the May 9 individuals do to warrant military prosecution?”

Justice Mazhar requested a FIR for each case, stressing the need for clarity.

Justice Mandokhail noted that individuals acquitted by anti-terrorism courts were subsequently sentenced by military courts and asked whether specific evidence was being presented in the military trials.

He expressed concern about the lack of support for anti-terrorism courts, stating, “These courts must make decisions based on the evidence presented.”

Justice Rizvi further questioned the severity of the May 9 incident, asking, “Is it more serious than terrorism that the accused are being tried in military courts?”

Advocate General of Punjab Ahmad Awais claimed that inmates in solitary confinement are allowed outside their cells after breakfast at 7:30am and remain outside until 5pm.

Justice Mandokhail inquired about the specific location, asking, “Which lawn is it? Is it the one with the death cell?” Awais clarified, “No sir, this is not the lawn you have seen… there is a tuckshop, and you can also have coffee.”

Advocate Faisal Siddiqui responded by questioning whether the jail environment resembled a home-like setting. Justice Hilali noted that if the AGP was found to be misleading the court, it would request a report from the prison reform committee.

In defense, AAG Punjab stated, “I have been practicing for 30 years; why would I lie?”

Justice Hilali, reflecting on her experience as an AAG in Khyber Pakhtunkhwa, stated, “We are the government’s lawyers; we have to support the government.”

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Analyst Hafeezullah Niazi then addressed the court, asserting that all accused individuals were being held in a “high-security area” and claimed they were not allowed to sign the power of attorney.

Justice Mazhar stated that no one was preventing them from submitting the power of attorney. The lawyer countered, mentioning that Brigadier Javed Akbar had been denied the opportunity to sign it.

The AAG replied that lawyers had access to meetings with their clients. Justice Mandokhail emphasised that, according to the jail manual, the superintendent was required to provide necessary facilities to inmates.

The court adjourned the hearing until the following day.\