ISLAMABAD: The Supreme Court`s Constitutional Bench (CB) hasbeenrequestedtotreattheintracourt appeals (ICAs) more like a review petition, instead of appeals against the October 2023 decision of a five-judge SC bench in civilians` military trial, to determine the validity of Pakistan Army Act.

The scope of the ICAs has been `confined to a review` where the present bench can rectify errors, if any, but cannot take a different view already enunciated by the five-judge bench through its judgement, argued Advocate Uzair Karamat Bhandari representing PTI founder Imran Khan before the seven-member CB on Wednesday.

Headed by Justice Aminuddin Khan, the CB had taken up a set of ICAs against the October 2023 order by the apex court nullifying militarytrial of civilians involved in the May 9 violence.

Mr Bhandari also referred to the March 7, 2024 decision of Justice Mansoor Ali Shah in the SC (Practice and Procedure) Act 2023, the jurisprudence of which was also concurred by eight judges. `Today we have the benefit of seven judges on CB, sitting with fresh mind hearing the present appeals,` he said. At this Justice Jamal Khan Mandokhail asked the counsel to add another word `young` in addition to what the counsel said regarding judges sitting with fresh minds.

The counsel emphasised that the five-member bench decision was binding upon the present sevenjudge bench. He argued that if the matter is treated as review hearing, it would not be possible for the CB to take a different view unless there were errors such as non-consideration of admitted facts by the earlier bench, error of law or any patent andsubstantial illegality or the judgment was per incuriam.

Then what should be the parameters to modify the earlier verdict, Justice Muhammad Ali Mazhar questioned. It was necessary to develop certain parameters as the earlier decisions could not be held wrong without reasons, rather they had to be treated with respect while maintaining certain norms and decorum, he observed.

Justice Aminuddin Khan wondered when even judges sitting on the CB had their own opinions, how the counsel could argue the present bench could not change the opinion rendered by the earlier bench in October 2023.

Referring to Article 245, Mr Khan`s counsel argued that the armed forces were part of the executive and therefore could not act in any manner or exercise any judicial function with regard to civilians. The armed forces cannot operate outsidethe ambit of Article 245, he insisted.

Judicial commission Earlier, Sardar Latif Khosa while representing Barrister Aitzaz Ahsan requested the CB to order setting up of a judicial commission to ascertain why police did nothing to stop the May 9 violence that spanned over four to five hours. He argued that the commission would help ascertain if the events were `orchestrated` and why only 105 people out of 5,000 arrested were subjected to military trials.

At this, Justice Musarrat Hilali asked if the counsel wanted to see dead bodies on roads if the police had attempted to control the unruly mobs on May 9.

The counsel then questioned why the government was reluctant to ascertain real facts, saying that nobody could dare to enter the corps commander house, Lahore.

He cited a report of International Commission of Jurists (ICJ), stating646 trials of civilians were conducted by the military courts. Of them, 641 civilians were convicted and 345 were awarded death sentences and in all such cases the primary source of evidence were `confessional statements` of the defendants.

At this, Justice Syed Hasan Azhar Rizvi remarked Pakistan remained a victim of terrorism much more than many other countries, wondering how many incidents of terrorism had been witnessed by ICJ member countries.

The counsel claimed that countries like Turkiye witnessed some terrorism incidents, but they had done away with military trial of civilians. He also cited the UN Committee against Torture, which took notice of civilians` trial by the military courts in Pakistan.

Justice Mazhar, however, wondered whether parliament had taken any consideration of the reports the counsel referred to.

Justice Mandokhail asked the counsel not to cite ICJ report when the matter pertained to the constitutional amendment and the appeals of many convicts were pending before the apex court.

The counsel, however, said the establishment of military courts should be seen in historical context.

He said Islam also emphasised on the `independence of the judiciary`.

Justice Mandokhail wondered what steps Sardar Latif Khosa took to abolish section 2(1)(d)(i) and (ii) of the Army Act as federal minister, senator, MNA, governor and attorney general and why no parliament ever abolished the section till date.

The counsel told the judges that people would become their fans if the CB ruled against civilians` trial by military courts, recalling how the 26th Amendment was bulldozed through parliament by forcing lawmakers to vote for the amendment.

When Justice Hilali wondered which legislator resigned after the 26th Amendment, the counsel reminded her that Akhtar Mangal had resigned from the National Assembly.

At the outset, Barrister Aitzaz Ahsan disowned Advocate Salman Akram Raja`s reservations over certain parts of October 2023 judgement given by Justice Munib Akhtar. Barrister Aitzaz said Salman Akram Raja was his counsel, too, and he had never given any instructions to him in this regard, making it clear that he completely supported Justice Akhtar`s decision.

Salman Akram Raja, however, said he had advanced arguments on behalf of his client Arzam Junaid. He also explained that he disagreed to only one paragraph of Justice Akhtar`s decision.