Latest news with #JamalKhanMandokhail


Business Recorder
5 days ago
- Politics
- Business Recorder
SC limits army courts' powers under Constitution
ISLAMABAD: The Supreme Court declared that under Article 175 (3) of the Constitution, the courts martial and the forum of appeal under the Pakistan Army Act, 1952, have no jurisdiction to prosecute persons accused of clause (d) of the Act. Justice Jamal Khan Mandokhail on Friday issued his verdict on the intra-court appeals against the Supreme Court judgment on military courts. A seven-judge Constitutional Bench of the Supreme Court, headed by Justice Aminuddin Khan, and comprising Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan on May 7 by majority of 5-2 had set aside the SC judgment and restored Section 2 (1) (d) and Section 59 (4) of Pakistan Army Act, 1952. The majority had referred the matter to the government/ parliament for considering and making necessary amendments/ legislation in the Army Act, and allied Rules for providing an independent right of appeal in the High Court, against the conviction awarded to the persons by the court martial/military courts, within a period of 45 days. Two members of the Constitutional Bench, namely, Justice Mandokhail and Justice Naeem, disagreed with the majority judgment, and set aside the convictions and sentences awarded to civilians by the courts martial for 9th May 2023, incidents, and declared them to be without jurisdiction. Justice Mandokhail judgment said that the jurisdiction to try civilians extended to courts martial, especially, in the light of the judgment of FB Ali ceases to exist. The discretion of 'prescribed officer' assigned to him by virtue of Section 94 of the PAA relating to transfer of cases of civilians to courts martial, in respect of civil offences under clause (d), is no more available. However, the courts martial have a limited jurisdiction to the extent of prosecuting members of the Armed Forces for violation of military laws and civil offences. It said that the logic behind the separation of the judiciary from the executive, under Article 175 of the Constitution, is that criminal offences are against the State, whereas, the executive is responsible for administration of the same. A person who breaches a law, is an accused of the State, therefore, the executive having an interest into the matter, cannot itself perform as a judge to punish the accused. It is for this reason, sub-Article (3) of Article 175 of the Constitution mandates that the judiciary shall be separated from the executive, within 14 years of commencement of the Constitution. The judgment noted that upon insertion of clause (d) in subsection (1) of Section 2 and subsection (4) in Section 59 of the Pakistan Army Act (PAA), the courts martial comprising serving officers of the Army are prosecuting the persons accused of offences of clause (d). It said that the purpose of adding the said clause in the PAA is that the offences mentioned therein are prejudicial to the interests of the Army. Admittedly, it is a fundamental principle of natural justice that no one ought to be a judge in his own cause or in which he has an interest. This principle is strictly observed to avoid any instance of bias, resulting into injustice. Under such circumstances, the courts martial and the forum of appeal under the PAA, manned or run by the executive, under the command, control and discipline of the Federal Government, cannot be regarded as unbiased, independent or impartial forums. They cannot protect the fundamental rights and liberties of citizens in a criminal charge or for the determination of their rights and obligations. Thus, courts martial and the forum of appeal are violative of Articles 2A, 175 (3) and 227 of the Constitution. The judgment held that the courts martial are administered judicially, not as a part of the judicature erected under Article 175 of the Constitution, but as part of the organisation of the Armed Forces itself. The jurisdiction of courts martial trying military personnel for service offences and civil offences is different from judicial power exercised by ordinary courts for the general offences against the State. The judgment said: 'We have no doubt in our minds that being a special legal framework, the PAA is primarily a disciplinary statute that applies exclusively to a specified group of people; i.e., members of the Armed Forces.' Copyright Business Recorder, 2025


Express Tribune
5 days ago
- Politics
- Express Tribune
SC judges term civilians' court-martials unconstitutional
Listen to article Supreme Court Justices Jamal Khan Mandokhail and Naeem Akhtar Afghan on Friday released a dissenting opinion in the case concerning the trial of civilians in military courts, declaring such court-martials unconstitutional. The 35-page minority decision firmly states that the jurisdiction of court-martials was exclusively limited to military personnel and cannot be extended to ordinary civilians. The judges ruled that the application of military jurisdiction to civilians was unconstitutional. The dissenting note critically examines the broader assumption that civil courts are incapable of dealing with high-profile terrorism cases, suggesting instead that this narrative was misleading. It observes that it has generally been portrayed that civil courts have failed to handle grave offences such as terrorism, and that military courts are the only remedy, but the reality is quite the opposite. Read More: SC greenlights military trials of civilians Recalling past precedent, the judges noted that military courts were temporarily authorised in 2015 to hear certain terrorism-related cases. However, the experiment failed to eliminate terrorism, partly because military officers lack the judicial experience required to adjudicate complex criminal matters. The decision observes that, globally, terrorism cases are not tried in military courts. It argues that criticism of the criminal justice system is misplaced and notes that acquittals in civil courts often result from poor investigation, weak witnesses, or politically charged cases, not from judicial incompetence. It pointed out that according to Article 25 of the Constitution, all citizens are equal before the law and are entitled to equal protection of the law. The principle of equal protection ensures that all citizens are treated alike under the law, irrespective of their background, race, religion, political affiliation, action or other classifications. 'This is a fundamental right guaranteed by the Constitution, ensuring that the law applies equally and no one is above the law. Treating citizens differently, without a reasonable classification amount to discrimination.' 'This happens when two equally placed persons or groups of people are treated differently. Discriminating individuals in legal proceedings on account of their acts or nature of an offence, is a violation of the principle of equal before law and are entitled to equal protection of law,' it further noted. 'The security of life and liberty of a person is a fundamental right, to be free from arbitrary deprivation of life and liberty. Article 9 of the Constitution guarantees and ensures that citizens have the right for protection from harm, physical danger, potential risks and threats to their life, unjust or illegal detention or imprisonment and of any action that could take away their freedom or life, in all circumstances,' the dissenting note read. Read more: SC annuls decision against civilian trials in military courts It further observed that an independent judiciary can act as a check on the government's power to ensure the security of life and liberty of citizens. The criminal justice system entails a set of laws and principles that provide a procedure, aim to protect the life and liberty of citizens, and to ensure order in society. Article 10 of the Constitution ensures safeguards as to the arrest and detention of a person, with a right to consult and be defended by a legal practitioner of his own choice. It is also made sure that no person shall be detained in custody beyond a period of twenty-four hours without the authority of a magistrate. 'The courts martial established under the MJS, consisting of executive, are not independent and impartial. They do not provide the constitutional protection of security of life and liberty of a person, and safeguard as to his arrest and detention. While detained in military custody, the provisions of jail manual are not applicable to the persons accused of military crime. Courts' martial proceedings are in-camera.' It further noted that the right of the accused to consult and be defended by a legal practitioner of his own choice, guaranteed by the Constitution, was subject to the approval of the Chief of the Army Staff or the convening officer, as provided by rule 82 of the Pakistan Army Act, Rules 1954. 'This is a fundamental right of a person under sub-Article (1) of Article 10 of the Constitution, which cannot be made conditional. The custody of accused of offence under clause (d) and the procedure adopted by the courts martial are inconsistent with, takes away and abridge their fundamental rights, which is violative of Articles 9 and 10 of the Constitution.' Read more: Military courts allowed to pronounce verdicts in May 9 cases The note stated that the right to fair trial and due process is universally accepted as a fundamental right, therefore, the legislature, realising its importance and necessity, inserted Article 10A in Chapter 1 of Part II of the Constitution, by the Constitution (Eighteenth Amendment) Act, 2010. 'Fair trial and due process help limiting abuse by Governments and State authorities and ensure integrity and fairness of the legal system. Due process has a requirement that the legal matter pertaining to civil rights and obligations and a criminal charge against a citizen be resolved according to law, established rules and principles, on the basis of evidence presented.' The dissent also criticises both the federal and provincial governments, stating that instead of investing in and improving the civil justice system, they opted for court-martials of civilians, a move that exceeds constitutional boundaries. The judges observed that the punishments handed down to civilians involved in the May 9, 2023, events by military courts were beyond their jurisdiction and therefore null and void. The note concludes by reiterating that the delivery of justice falls within the constitutional domain of the civilian judiciary. The rule of law demands that every citizen be afforded the right to a fair trial, the decision states.


Business Recorder
28-05-2025
- Politics
- Business Recorder
Reserved seats case: SIC lawyer proposes three sets of relief
ISLAMABAD: The Sunni Ittehad Council (SIC)'s counsel proposed three sets of relief that the Constitutional Bench may grant in reserved seats case, which the majority judgment has allotted to the Pakistan Tehreek-e-Insaf (PTI). A 11-member Constitutional Bench of the Supreme Court, headed by Justice Aminuddin Khan, on Tuesday, heard the review petitions of Pakistan Muslim League-Nawaz (PML-N), Pakistan Peoples' Party (PPP) and the Election Commission of Pakistan (ECP). The proceeding was live-streamed on SC's YouTube channel. Faisal Siddiqui, appearing on behalf of the SIC, argued that the court again and again has asked what kind of relief could be given in this instant case. He said there are three categories of relief. First, set aside the majority judgment and dismiss the SIC's appeal and uphold the Peshawar High Court (PHC)'s verdict. Second, the majority judgment is substituted with the judgment of any minority judgment. He said the majority judgment could be substituted with the judgment of either with the judgment of Justice Yahya Afridi or Justice Jamal Khan Mandokhail. Third, the majority judgment is set aside and the appeal of the SIC is decided after rehearing. During the proceeding, Justice Jamal Khan Mandokhail inquired from the counsel whether he considers the PTI elected candidates are independents. He asked why none of the 80 candidates came forward. Justice Muhammad Ali Mazhar said if they are independent candidates then the SIC role ends in this case. Justice Musarrat inquired on which symbol Hamid Raza contested the general elections. She noted that the SIC's election symbol was 'Horse', but Hamid contested election on the symbol of 'Clock'. She further asked why Hamid Raza had not contested election on the platform of the SIC. On the question why the review petition should be dismissed, Faisal contended that a certificate which is filed by the lawyer with the petition is of critical importance; as if the grounds for review proved false then there are penal consequences of it. The SIC's counsel pleaded that the review petition could be filed by only those who were before the Court either in the original case or the appeal. He said some of the individuals who were not party in the appeal were allowed to file review petitions on the basis of the apex court's judgment in HM Saya. Justice Mandokhail questioned why a person aggrieved by the apex court's judgment could not approach the court. He said, suppose, the Supreme Court passes a judgment which infringes the right of a party/ person who was not party before the Court in the original case then why should not the court hear him. Justice Mandokhail noted that there is no mention of a party in the constitution or the Supreme Court Rules for review of any judgment or order. How come the Supreme Court, which is the final court, can pass a judgment or order without hearing a person or party, which could be affected by the judgment? Faisal argued that the court should not have allowed Hina Chugttai to file the review petition, as her party, PML-N, was before the court in the reserved seats case. He contended that if her petition was allowed then why an identical application of Kanwal Shauzaib was dismissed. 'What is not good for one is also not good for (the) other'. The bench noted that neither Kanwal Shauzaib nor her party (the PTI) filed an appeal against the order of the ECP, and Peshawar High Court. Faisal, earlier, argued that the majority judgment declared that all the candidates who had contested election as an independent are now the members of PTI in the parliament. Justice Mandokhail corrected by saying not all but only those who have mentioned in their nomination PTI, while others; i.e., 41 candidates were asked that they could join any political party. Faisal said since the Election Commission has not implemented the majority judgment; therefore, they continue to remain my members. He said that the ECP recognises the independents as the SIC members. Justice Mazhar said but after the judgment they approached the Election Commission and filed the declarations that they are members of PTI, as they themselves decide that they have joined PTI. The case was adjourned until tomorrow (May 29). Copyright Business Recorder, 2025


Express Tribune
26-05-2025
- Politics
- Express Tribune
SC resumes hearing on PTI reserved seats, streams live for first time
Listen to article A constitutional bench of the Supreme Court resumed hearing on Monday a set of review pleas against the apex court's ruling that had declared the Pakistan Tehreek-e-Insaf eligible for reserved seats, livestreaming proceedings for the first time, since the passage of the 26th Constitutional Amendment. In the short order dated July 12, 2024, eight out of 13 judges concluded that 39 of the 80 MNAs were returned candidates of PTI in the National Assembly. Supreme Court Justice Jamal Khan Mandokhail said that the presiding officers and returning officers failed to perform their duties in accordance with the law and constitution during February 2024 general election. Should the Supreme Court shut its eyes, he asked Makhoom Ali Khan, who has challenged the July 12 order on behalf of certain women. An 11-member bench of the apex court led by Justice Aminuddin Khan is hearing review petitions against the July 12 order wherein it was held that PTI is entitled to get reserved seats. However, the SC order is yet to implement. Justices Ayesha A Malik and Aqeel Ahmed Abbasi had dismissed the review petitions on the first day of hearings. The other 10 members of the bench are Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhter Afghan, Shahid Bilal Hassan, Muhammad Hashim Khan Kakar, Salahuddin Panhwar, Aamer Farooq and Ali Baqar Najafi. Interestingly, six judges, including the author of the majority decision, are not part of this larger bench. Justice Shahid Bilal and Justice Mussarat Hilali wondered as to how reserved seats were given to PTI when they were not a party - neither before the Election Commission of Pakistan nor the Peshwar High Court. Justice Aminuddin Khan said it is an admitted fact that all PTI backed returned candidates had joined the Sunni Ittehaad Council, which did not contest the general elections. Senior counsel Makhoom Ali Khan appeared on behalf of PML-N and PPP women candidates affected by the July 2024 ruling. Justice Mandokhail said that all judges were unanimous that reserved seats could not be allocated to SIC as it did not contest the general elections. 'How can independent lawmakers join a political party that isn't in the parliament? Did SIC contest the elections?' Justice Malik inquired. In response, the PPP lawyer clarified that the party hadn't participated in the elections, and even its chairman, Sahibzada Hamid Raza, had run as an independent candidate. Justice Mandokhail then remarked, 'The SIC is not qualified for reserved seats. While the Sunni Ittehad Council could have formed a parliamentary party, it does not have the entitlement to reserved seats'. Makhoom also said that once reserved seats were allocated to certain individuals by ECP, then same could not be called in question through quo warranto jurisdiction. Makhoom said that election disputes could be challenged under Article 225 of the Constitution. He also questioned the majority decision to exercise jurisdiction under Article 187 to allocate seats to PTI. He said that SC has limited jurisdiction under Article 185 of constitution. Makhoom has completed his arguments. Surprisingly, counsels for PMLN and ECP have adopted his arguments. The hearing of the case is adjourned until tomorrow, when SIC counsel Faisal Siddiqi will start his arguments In its detailed verdict on the reserved seats case, authored by Justice Mansoor Ali Shah, the Supreme Court criticised the ECP for its 'unlawful acts and omissions,' which caused prejudice to PTI and its supporters. The court also accused the ECP of failing to act as an impartial steward of elections. On September 14, 2024, the day the government failed to introduce the 26th Amendment in Parliament, the Supreme Court issued a clarification, criticising the ECP for not enforcing its July 12 ruling on the reserved seats case. Subsequently, on October 18, Justice Shah clarified once again that the amendment to the Elections Act 2017, made in August, could not overturn the verdict in the reserved seats case. The 'Elections (Second Amendment) Act, 2024' was seen as an attempt to bypass the SC ruling by barring independent lawmakers from joining a political party after a certain period. A six-judge bench will hear PTI's petition challenging these amendments in December 2024, while a separate PTI plea against the January 13, 2024 ruling on its election symbol is also pending.


Express Tribune
14-05-2025
- Business
- Express Tribune
Sales Tax Act for ex-FATA, PATA restored
Income tax collection was about Rs335 billion more than the target, offsetting the impact of missed sales tax and customs duty targets. photo: file The Constitutional Bench has reinstated the Sales Tax Amendment Act for the formerly FATA and PATA, suspending the Peshawar High Court's earlier verdict that had nullified the act. The case concerning the exemption granted under the Sixth Schedule of the Sales Tax Act for residents of FATA and PATA was heard on Wednesday by the five-member Constitutional Bench, headed by Justice Amin-ud-Din Khan. Other members of the bench included Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, and Justice Shahid Bilal Hassan.