 
 
 
IN THE SUPREME COURT OF PAKISTAN 
                      (Original Jurisdiction) 
 
 
 
 
Present:  
 
 
Mr. Justice Sardar Tariq Masood  
Mr. Justice Amin-ud-Din Khan  
Mr. Justice Muhammad Ali Mazhar 
Mr. Justice Syed Hasan Azhar Rizvi  
Ms. Justice Musarrat Hilali  
Mr. Justice Irfan Saadat Khan 
 
 
1. I.C.A.5/2023 IN Const.P.24/2023  
2. I.C.A.6/2023 IN Const.P.24/2023  
3. I.C.A.7/2023 IN Const.P.25/2023  
4. I.C.A.8/2023 IN Const.P.24/2023  
5. I.C.A.9/2023 IN Const.P.26/2023  
6. I.C.A.10/2023 IN Const.P.26/2023  
7. I.C.A.11/2023 IN Const.P.30/2023  
8. I.C.A.12/2023 IN Const.P.35/2023  
9. I.C.A.13/2023 IN Const.P.27/2023  
10. I.C.A.14/2023 IN Const.P.24/2023  
11. I.C.A.15/2023 IN Const.P.35/2023  
12. I.C.A.16/2023 IN Const.P.26/2023  
13. I.C.A.17/2023 IN Const.P.24/2023  
14. I.C.A.18/2023 IN Const.P.30/2023  
15. I.C.A.19/2023 IN Const.P.25/2023  
16. I.C.A.20/2023 IN Const.P.25/2023  
17. I.C.A.21/2023 IN Const.P.28/2023  
18. I.C.A.22/2023 IN Const.P.25/2023  
19. I.C.A.23/2023 IN Const.P.30/2023  
20. I.C.A.24/2023 IN Const.P.26/2023  
21. I.C.A.25/2023 IN Const.P.28/2023 
 
 
 
 
Shuhada Forum, Balochistan through its Patron in 
Chief, Nawabzada Jamal Raisani, Quetta Cantt. and 
others  
 
 
               …Appellants 
                                        Versus 
Justice (R) Jawwad S. Khawaja and others 
 
               …Respondents 
For the Appellants: 
Mr. Mansoor Usman Awan, AGP 
Ch. Aamir Rehman, Addl. AGP 
Malik Javed Iqbal Wains, Addl. AGP 
Raja Muhammad Shafqat Abbasi, DAG 
Mr. Khalid Ishaq, AG, Pb 
Mr. Baleegh-uz-Zaman Chaudhry, Addl. AG, Pb 
Malik Waseem Mumtaz, Addl. AG, Pb 
Mr. Khurram Shahzad, Addl. AG, Pb 
Mr. Ayaz Khan Swati, Addl. AG, Balochistan 
Khawaja Haris Ahmad, Sr. ASC 
Mr. Yaser Aman Khan, ASC 
Mr. Shumail Butt, ASC 
Mr. Sikandar Bashir Mohmand, ASC 
Mr. Tariq Aziz, AOR 
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Mr. Jawaid Masood Tahir Bhatti, AOR 
Syed Rifaqat Hussain Shah, AOR  
Ms. Imrana Parveen Baluch, AOR 
Mr. Zahid Yousaf, AOR 
Mr. Anis Muhammad Shahzad, AOR 
 
 
For the Respondents: 
Sardar M. Latif Khan Khosa, Sr. ASC 
Ch. Aitzaz Ahsan, Sr. ASC 
Mr. Abid S. Zuberi, ASC 
Mr. Faisal Siddiqui, ASC 
Mr. Salman Akram Raja, ASC 
Mr. Salahuddin, ASC 
Ms. Bushra Qamar, ASC 
Mr. M. Arif Ansari, ASC 
Syed Ali Imran, ASC 
Ms. Samia Faiz Durrani, ASC 
Mr. Rafaqat Islam, ASC 
Sardar Shahbaz Ali Khosa, ASC 
 
Mr. Muqtadar Akhtar Shabbir, ASC 
Mr. Uzair Karamat Bhandari, ASC 
(via video link from Lahore) 
 
 
 
Date of Hearing: 
13.12.2023 
 
 
O R D E R 
 
 
These Intra Court Appeals filed under Section 5 of the Supreme Court (Practice 
and Procedure) Act, 2023 are directed against the impugned Order dated 
23.10.2023 passed by the learned bench of this Court in Constitution Petition 
Nos.24, 25, 26, 27, 28, 30 & 35 of 2023, whereby, for detailed reasons to be 
recorded later, the aforesaid Constitution Petitions were decided in the 
following terms: 
 
 
“ORDER OF THE COURT 
 
For detailed reasons to be recorded later, and subject to such 
amplification and/or explanation therein as is considered 
appropriate, these petitions are decided in the following terms: 
 
 i. It is hereby declared by Mr. Justice Ijaz ul Ahsan, Mr. Justice 
Munib Akhtar, Mr. Justice Sayyed Mazahar Ali Akbar Naqvi and 
Mrs. Justice Ayesha A. Malik that clause (d) of subsection (1) of 
Section 2 of the Pakistan Army Act, 1952 (in both of its sub 
clauses (i) & (ii)) and subsection (4) of Section 59 of the said Act 
are ultra vires the Constitution and of no legal effect.  
 
ii. Without prejudice to the generality of the foregoing the trials 
of civilians and accused persons, being around 103 persons who 
were identified in the list provided to the Court by the learned 
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Attorney General for Pakistan by way of CMA No.5327 of 2023 in 
Constitution Petition No.24 of 2023 and all other persons who 
are now or may at any time be similarly placed in relation to the 
events arising from and out of 9th and 10th May, 2023 shall be 
tried by Criminal Courts of competent jurisdiction established 
under the ordinary and / or special law of the land in relation to 
such offences of which they may stand accused.  
 
iii. It is further declared that any action or proceedings under 
the Army Act in respect of the aforesaid persons or any other 
persons so similarly placed (including but not limited to trial by 
Court Martial) are and would be of no legal effect.  
 
iv. Mr. Justice Yahya Afridi reserves judgment as to para (i) 
above, but joins the other members of the Bench as regards 
paras (ii) and (iii)” 
 
  
2. The learned counsel for the appellants argued, inter alia, that on 
09.05.2023, numerous military installations and establishments throughout 
the country faced targeted attacks for which several First Information Reports 
(FIRs) were lodged at different Police Stations. Initially, in some FIRs, the 
offences covered under the Pakistan Army Act, 1952 (“Army Act”) were not 
mentioned, but subsequently the said offences were also added for the trial of 
the accused persons. According to the learned counsel, 103 persons have been 
found to be involved in the offences under the Army Act, and were taken into 
custody in accordance with law and procedure. It was further contended that 
the detailed reasons in support of the short order have not been released by the 
learned bench so far, but keeping in mind the urgency, and to avoid the rigors 
of limitation, the present Intra Court Appeals have been filed without prejudice 
to the right of filing amended memo of appeals upon the detailed reasons being 
released. It was further averred that, in the light of sub-clause (a) to clause (3) 
of Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973 
(“Constitution”), the laws relating to members of the Armed Forces for the 
purpose of ensuring the proper discharge of their duties or the maintenance of 
discipline among them are not susceptible to be adjudged on the touchstone of 
the Fundamental Rights as contained in the Constitution. It was further 
contended that while declaring clause (d) of sub-section (1) of Section 2 of the 
Army Act (in both of its sub-clauses (i) and (ii)), and sub-section (4) of Section 
59 of the said Act as ultra vires the Constitution, the learned bench has 
deviated from the ratio of the judgment rendered by this Court in Brig. (Retd.) 
F. B. Ali's case (infra) whereby the provisions of the Army Act were declared 
intra vires the Constitution, hence there was no justification for holding clause 
(d) of sub-section (1) of Section 2 of the Army Act (in both its sub-clauses (i) 
and (ii)), and sub- section (4) of Section 59 of the said Act ultra vires the 
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Constitution. It was further argued that the courts under the Army Act do not 
form part of the judicial hierarchy contemplated by Articles 175 and 203 of the 
Constitution and, as such, neither the provisions of clause (3) of Article 175 of 
the Constitution, nor those of Article 203 are applicable to, or have any 
relevance to the said Courts. It was further contended that the process of trial 
under the Army Act is consistent with the recognized principles of criminal 
justice as held in Brig. (Retd.) F. B. Ali's case (PLD 1975 SC 506), Shahida 
Zahir Abbasi's case (PLD 1996 SC 632), and the majority judgment of this 
Court rendered in the case of  District Bar Rawalpindi case (PLD 2015 SC 
401). It was further contended that clause 2 (d) was inserted into the Army Act 
vide Section 2 of the Defence Services Laws Amendment Ordinance, 1967 
which is protected under Article 268 of the Constitution. It was further argued 
that due to the striking down of the law in question by dint of the impugned 
order, no action can be taken against the hardcore criminals and terrorists 
involved in the attacks on army installations and/or against the martyrdom of 
innocent civilians and personnel of the armed forces who are devoting and 
sacrificing their precious lives to combating the menace of terrorism. He further 
argued that even in the present situation, no action can be taken against the 
persons accused of espionage. In the end, all the counsel for the appellants 
collectively requested that the impugned Order may be suspended till further 
orders, because the detailed reasons have not been released.  
 
 
3. Although it is the first date of hearing and no notice has been issued to the 
respondents, some of the respondents are represented by their counsel who 
addressed their preliminary arguments. They have insisted that the detailed 
reasons be allowed to be released by the learned bench of this Court before the 
passing of any interim order(s) in these Intra Court Appeals, but it is an 
admitted position that the detailed reasons have not been released hitherto to 
expound and amplify the reasons for striking down the law in question.  
 
 
4. Issue notice to the respondents for a date that may be fixed by the office in 
the third week of January 2024. Office is further directed to append the 
detailed reasons, if released by the learned bench initially seized of the matter, 
on the next date of hearing.  
 
 
CMAs No.10534 to 10551 of 2023  
 
 
Notice. Since the appellants have raised various questions of law which require 
consideration, therefore till the next date of hearing, with the majority of five to 
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one (the latter being Musarrat Hilali-J, who only issued notice on the stay 
applications and main appeals), the operation of the impugned Order striking 
down clause (d) of subsection (1) of Section 2 of the Army Act (in both of its sub 
clauses (i) & (ii)), and subsection (4) of Section 59 of the said Act as being ultra 
vires the Constitution, is suspended subject to the condition that no final 
judgment shall be passed against the 103 accused persons by the Military 
Courts.  
The Civil Misc. Application No.10514/2023 filed by respondent No.1 in 
ICA.No.5/2023 for reconstitution of bench and Civil Misc. Application 
No.10522/2023 filed by respondent Nos.1 to 5 in ICA No.10/2023 for 
broadcasting/live streaming of the Court proceedings of the instant Intra Court 
Appeals will be heard on the next date of hearing. 
 
 
      Sardar Tariq Masood, J. 
 
 
 
Amin-ud-Din Khan, J.  
 Muhammad Ali Mazhar, J. 
 
 
 
 
Syed Hasan Azhar Rizvi, J. 
 
Musarrat Hilali, J. 
 
 
 
 
  Irfan Saadat Khan, J. 
 
 
 
 
 
ISLAMABAD  
13th December, 2023 
“Approved for reporting” 
 
 
