The Federal Government on Friday informed the Constitutional Court (CB) of the Supreme Court that only 105 of the over 5,000 people accused of resorting to acts of violence on May 9, 2023 were tried by military courts as there was solid documentary evidence against these 105. people.

As the seven-member CB resumed hearing the appeals filed against the SC’s October 2023 order on trial of civilians in military courts, Additional Attorney General Amir Rehman responded to a query raised by a bench member a day earlier regarding the selection of accused for trial by military courts.

“There were approximately 5,000 suspects involved in the events of May 9. Of these, 105 suspects were taken to military courts with solid evidence of their presence at the scenes of the incidents,” Rehman told the bench headed by Justice Aminuddin Khan.

During the hearing, Judge Mussarat Hilali referred to the October 1999 Plane Conspiracy case.

On 12 October 1999, the then Prime Minister, Nawaz Sharif, attempted to dismiss the then Army Chief, General Pervez Musharraf, who was returning to Pakistan from an official visit to Sri Lanka.

Nawaz Sharif reportedly ordered to close Pakistan’s airspace to deny Musharraf’s plane from landing in Karachi. The plane carrying Musharraf and over 200 passengers reportedly had limited fuel, creating a potentially life-threatening situation.

In response, senior military officers loyal to Musharraf launched a coup and took control of the government and airports. The plane eventually landed safely in Karachi.

Referring to the incident, Justice Hilali noted that despite the alleged attempt to stop an airliner carrying the army chief from landing in Pakistan – an act that allegedly resulted in the military coup, Nawaz Sharif was not tried in a military court.

Reacting to the observation, Defense Ministry lawyer Khawaja Haris stated that the Pakistan Army Act, 1952 does not deal with hijacking and that was the reason why the accused was not tried in a military court.

Haris argued that the Pakistan Army Act, 1952, applies only to persons who violate the Official Secrets Act, 1923, and not to every terrorist.

Justice Hilali asked whether military courts conducted trials based on the FIRs registered at police stations. She questioned how military courts could proceed with cases registered under Pakistan Penal Code (PPC), 1860 and Anti-Terrorism Act (ATA), 1997.

“The copies of the three FIRs given to the court do not include provisions of the Official Secrets Act,” she added.

Haris told the bench that additional provisions could be included after investigation. Justice Muhammad Ali Mazhar noted that there is a separate procedure for adding additional provisions and asked if the investigation was based solely on police findings.

Khawaja Haris stated that when a suspect is in military custody, there is a separate investigation system in the military.

Judge Hilali also sought clarification on who writes the judgment at military courts.

“As far as I know, the case is dealt with by one party, but the decision on punishment or reward is made by the commanding officer, who has not heard the case himself. How can someone who has not dealt with the case decide on punishment or reward?” she asked.

Haris replied that the Judge Advocate General (JAG) department of the military is providing assistance in drafting the decision. Judge Hilali then asked the lawyer about who serves as a judge in military courts in other countries, including the United States.

Justice Muhammad Ali Mazhar noted that officers preside over military tribunals worldwide.

Khawaja Haris stated that the officers presiding over military courts have experience in conducting trials. However, Justice Mazhar intervened and told the lawyer that Justice Hilali is asking whether these officers also have legal qualifications. The CB later adjourned the hearing to Monday.