Justice Yahya Afridi Declares the Military Trials of the Civilians by Military Courts Void and Illegal.
Initially a Nine-Member bench was constituted for the Military Courts Case but some of the members recused to sit on the bench to hear the case which minimised the numerical strength of the bench from nine to five. The five-member bench announced its judgement declaring trials of civilians by military courts and sections 2 (1) (d) (i) and (ii), and 59 of the Army Act unconstitutional. Justice Yahya Afridi partially agreed with majority judgment and dissented to the extant of declaring the said sections unconstitutional.
Applicability of Sections 2 (1) (d) (i) and (ii), and 59 of the Army Act to the Civilians Involved in the 9th and 10th May Incidents:
Justice Yahya Afridi wrote his separate opinion and agreed with the majority judgment in holding that the civilians involved in the 9th and 10th May incidents, and those who are similarly placed to them, cannot be tried by Military Courts for their alleged attacks on the military installations. He held that the state has chosen only 103 civilians to be tried under the Army Act while the rest have to be tried in the ordinary Courts. Such pick and choose is not allowed in the Constitution. Similarly, the intention of the civilians to cause damage to the defence line of Pakistan is also missing. Their alleged acts are also not related to the work and affairs of the Armed Forces which form integral part of defending Pakistan against an external aggression. On these grounds, he held that the alleged civilians cannot be tried by Military Courts.
Vires of Sections 2 (1) (d) (i) and (ii), and 59 of the Army Act:
He at the very outset of the opinion referred to F.B. Ali case which had been filed by a Brigadier who had been tried under the above mentioned sections for his involvement in certain acts against the sate. The bench in that case was a five-member bench which ruled that the said sections are intra vires the Constitution. The ratio of this case was followed by other watchful judgments of the Supreme Courts in numerous cases. Justice Yahya held that judicial discipline and principle of propriety suggest that a co-equal bench in numerical strength cannot overrule a judgment of another co-equal bench. Thus, the instant bench comprising five judges cannot deviate from the ruling of the F.B. Ali Case. He said that he cannot give a definite opinion on the constitutionality of the said sections as he is bound by the ratio of the F.B. Ali Case, but he wished that the proper course was to adjudge the case in hand by nine or more than nine judges to revisit the view of the F.B. Ali Case. He stated that their is substantial weight in the petitioner’s contention that the ratio of the F.B. Ali Case must be revisited bu it cannot be done by the present bench of co-equal strength.
const.p._24_2023_an
