Military Courts case

Jawwad S. Khawaja v. Federation of Pakistan
Court	Supreme Court of Pakistan
Full case name	Jawwad S. Khawaja v. Federation of Pakistan Aitzaz Ahsan v. Federation of Pakistan[1]
Decided	October 23, 2023; 11 months ago (2023-10-23)
Citation	PLD 2024 SC 337
Case history
Appealed to	Supreme Court of Pakistan (intra-court appeal; larger bench)
Subsequent actions	Ruling challenged by federal and provincial caretaker governments. A larger bench suspended the original verdict by a majority of 5-1.
Ruling
Trial of civilians by court martial are declared unconstitutional; all ongoing trials by military courts are set aside; Brigadier F. B. Ali v. The State is distinguished.
Court membership
Judges sitting	Ijaz-ul-Ahsan Munib Akhtar Yahya Afridi Mazahar Ali Akbar Naqvi Ayesha A. Malik
Case opinions
3
Majority	Munib Akhtar, joined by unanimous bench
Concurrence	Ayesha A. Malik, Yahya Afridi
Dissent	Yahya Afridi to the extent of striking down § 2(1)(d) of the Pakistan Army Act, 1952 and distinguishing F. B. Ali
Laws applied
Articles 8(3), 8(5), 10A, 175(3) and 184(3) of the Constitution; § 2(1)(d) of the Pakistan Army Act, 1952

Jawwad S. Khawaja v. Federation of Pakistan, PLD 2024 SC 337 (commonly referred to as the military courts case), is a landmark decision by the Supreme Court of Pakistan in which it was held that the Constitution of Pakistan does not allow for the court-martial of civilians.

The case concerned the constitutionality of military courts set up to try protestors accused of involvement in the May 9 riots that ensued from the arrest of former prime minister Imran Khan.^[2] The Supreme Court was petitioned in its original jurisdiction by lawyer Aitzaz Ahsan and retired chief justice of Pakistan Jawwad S. Khawaja; arguments before the Court proceeded from June to October 2023.

On 23 October 2023, the Court issued a unanimous decision striking down ongoing trials by military courts and, by a majority of 4-1, held that § 2(1)(d) of the Pakistan Army Act, 1952 enabling such trials was unconstitutional.^[3] It also held that the accused 103 persons would be tried by civilian courts under ordinary criminal law. The decision was widely hailed by legal experts, human rights groups, and civil society as 'brave' and 'truly historic'.^[4]

The judgment was challenged by federal and provincial caretaker governments before a larger bench, in the first appeal of its kind under the newly passed Practice and Procedure Act, 2023. Whereas the original bench had been formed by outgoing chief justice Umar Ata Bandial, the formation of the appellate bench by his successor Qazi Faez Isa was controversial and deemed violative of the Procedure Act by the head of the original bench, Ijaz-ul-Ahsan.^[5] The new bench was headed by Justice Sardar Tariq Masood, whose inclusion was objected to as he had opposed the same petitions earlier.^[6][7]

On 13 December 2023, the new bench suspended the earlier ruling by a 5–1 majority, stating that the trials of civilians would continue in military courts.^[8]

The Supreme Court (SC) provisionally permitted military courts to issue their pending decisions on the trials of civilians.This matter was addressed during intra-court appeals by a six-member Supreme Court bench led by Justice Aminuddin Khan, challenging the trial of civilians in military courts.The bench also included Justices Muhammad Ali Mazhar, Hasan Azhar Rizvi, Shahid Waheed, Musarrat Hilali, and Irfan Saadat Khan.^[9]