IN THE SUPREME COURT OF PAKISTAN

APPELLATE JURISDICTION

INTRA-COURT APPEAL NO. ______ OF 2023

THE PROVINCE OF SINDH,

through the Chief Secretary,
Sindh Civil Secretariat, Karachi.
… APPELLANT

VERSUS

1. JAWWAD S. KHAWAJA
Son of Khawaja Sajjad Nabi,
Harrsukh, 4-Jasmine Lane,
Thetar Village, Bedian Road,
Cantt, Burki P.O. 53201,
Lahore.

2. FEDERATION OF PAKISTAN,
through the Secretary Law, Justice & Parliamentary Affairs Division,
Ministry of Law & Justice,
Pak Secretariat,
Islamabad.

3. FEDERATION OF PAKISTAN,
through the Seceretary, Ministry of Defence,
Pak Secretariat,
Islamabad.

4. THE PROVINCE OF BALOCHISTAN,

through the Chief Secretary,
Services and General Administration Department,
Zarghun Road, Quetta.

5. THE PROVINCE OF KHYBER PAKHTUNKHWA,

through the Chief Secretary,
Civil Secretariat, Sahibzada Abdul Qayyum Road,
Peshawar.

6. THE PROVINCE OF PUNJAB,

through the Chief Secretary,
Punjab Civil Secretariat,
Lahore.
… RESPONDENTS

APPEAL UNDER SECTION 5 OF THE SUPREME COURT (PRACTICE &

PROCEDURE) ACT, 2023 READ WITH ARTICLE 184 (3) OF THE CONSTITUTION OF
THE ISLAMIC REPUBLIC OF PAKISTAN, 1973 READ WITH ALL OTHER ENABLING
PROVISIONS OF LAW AGAINST THE ORDER DATED OCTOBER 23, 2023,
PASSED IN CONST. PETITION NO. 24,25, 25, 27, 28, 30 AND 35 OF 2023
Respectfully sheweth:

 That this appeal is directed against the Short Order dated October 23,

2023, (the ‘Impugned Short Order’) passed by a five-member bench of

the Hon’ble Supreme Court of Pakistan in Const. Petitions Nos.24, 25, 26,

27, 28, 30 and 35 of 2023 (the ‘Petitions’).

 Firstly, by way of the Impugned Short Order, four out of the five Hon’ble

Judges (with Mr. Justice Yahya Afridi reserving judgment on this

count) have declared s. 2(1)(d)(i) and (ii), and s. 59(4) of the Pakistan Army

Act, 1952 (the ‘Army Act’) ultra vires the Constitution of the Islamic

Republic of Pakistan, 1973 (the ‘Constitution’) and of no legal effect.

 Secondly, the Impugned Short Order, unanimously, directs that one

hundred and three (103) persons identified in the list provided to this

Hon’ble Court in CMA No. 53327 of 2023, as well as other persons who

are or may be similarly placed in relation to the events arising from and out

of 9th and 10th May, 2023, be tried by criminal courts of competent

jurisdiction under the ordinary and/or special law of the land.

 Lastly, the Impugned Short Order, unanimously declared that any action

or proceedings under the Army Act in respect of the aforesaid persons or

other similarly placed persons, including trial by Court Martials established

under the Army Act to be without legal effect.

The Impugned Short Order dated October 23, 2023, in Const. Petitions Nos. 24,
25, 26, 27, 28, 30 and 35 of 2023 is attached as Annexure A.

 Being aggrieved and dissatisfied by the Impugned Short Order the

Appellant, i.e., the Province of Sindh (the ‘Province’ or ‘Appellant’)

prefers this appeal on, inter alia, the following points of law, facts and

grounds:
 POINTS OF LAW

i. Whether the Hon’ble Bench, with utmost respect and reverence, materially erred

in entertaining and exercising jurisdiction in relation to the Petitions filed

under Article 184(3) of the Constitution?

ii. Whether the Hon’ble Bench (and/or its majority decision, as applicable),

with utmost respect and reverence, materially erred in disregarding the

constitutional protection afforded to the Army Act (and the attendant

delegated/secondary legislative instruments)? In particular, whether the

Hon’ble Bench (and/or its majority decision, as applicable), with utmost

respect and reverence, materially erred in declaring s. 2(1)(d) & s. 59(4) of the

Army Act as unconstitutional despite the express mandate of Article

8(3)(a) of the Constitution?

iii. Whether the Hon’ble Bench (and/ or its majority decision, as applicable),

with utmost respect and reverence, fails to particularize the very basis on which

the aforesaid provisions of the Army Act have been declared as

unconstitutional?

iv. Whether the Hon’ble Bench (and/or the majority decision, as applicable),

with utmost respect and reverence, materially erred in disregarding the earlier

precedent(s) which were binding on the same? Whether the same renders

the Impugned Short Order, with utmost respect and reverence, as per incuriam?

v. Whether the Hon’ble Bench (and/or the majority decision, as applicable),

with utmost respect and reverence, materially erred in relying upon the case-law

and arguments which were/ are distinguishable and have no

(constitutional, legal or factual) nexus with the matter under consideration?

vi. Whether the Hon’ble Bench, with utmost respect and reverence, acted with

undue haste in deciding the Petitions?

vii. Whether the Hon’ble Bench (and/or the majority decision, as applicable),

with utmost respect and reverence, did not consider the (far-reaching)

ramifications of the Impugned Short Order?

viii. Whether the Hon’ble Bench, with utmost respect and reverence, materially erred

in issuing the consequential directions (including the nature, scope and

amplitude of the same)?

ix. Whether the Hon’ble Bench, with utmost respect and reverence, materially erred

in disregarding the detailed and exhaustive provisions (covering both

substantive and adjective matters) of the Army Act, Pakistan Army Act

Rules, 1954 (the ‘Army Rules’) and the Manual of Pakistan Military Law?

The questions of law have been framed on the basis of the Impugned Short Order. The Appellant

reserves the right to and would respectfully and humbly crave the permission of this Hon’ble Court

to frame further questions of law after the detailed judgments are handed down in relation to the

question of maintainability, constitutionality (or lack thereof) of the applicable provisions (with

Mr. Justice Yahya Afridi also handing down his reserved order in relation to the same) and the

consequential relief granted by the Hon’ble Bench.

FACTS

1. That the present appeal (which emanates from the Petitions delineated

herein above), pertain to the events of May 9, 2023, & May 10, 2023.

2. That on the aforesaid days, the entire nation witnessed a series of

unfortunate events viz. that military installations, establishments and

personnel across the country came under attack. The cause of the same
 has been well-reported and requires no exposition for the present

purposes.

3. That the said attacks appeared to be well co-ordinated and were meant to

affect the morale of the Armed Forces of Pakistan. They were also aimed

to create a rift within the Armed Forces thereby undermining the

command and control of the same.

4. That the said attacks resulted in damage, destruction and grave loss to

military installations and establishments. Furthermore, they resulted in

injuries to military and other personnel.

5. That it is a constitutionally guaranteed right, albeit not an absolute one, of

the citizens of Pakistan to assemble peacefully and to record their protest

in relation to any matter of concern to them. However, this does not entitle

any person to resort to violence or to cause destruction or loss to any

property including any military and other sensitive installations and

establishments.

6. That a number of First Information Reports (‘FIRs’) were lodged against

those who were responsible for the loss and injuries sustained as a

consequence of the said attacks.

7. That certain individuals, based on their conduct falling within the scope of

the Army Act and the attendant delegated/ sub-ordinate legislation, were

subsequently placed into or transferred to military custody in adherence to

the provisions outlined in the Army Act and the Army Rules.

8. That the Petitions were filed before the Hon’ble Supreme Court to

challenge the transfer and trial of some of the accused by way of Court

Martial.
 9. That the Petitioners, cumulatively, challenged the vires of some of the

provisions of the Army Act. Furthermore, they also sought a declaration

that the detention and trial of those civilians who were involved in

attacking military establishments and installations and causing injury to

military and other personnel by way of a Court Martial, was without

jurisdiction, in excess of jurisdiction and/or suffer from mala fide.

10. That these Petitions were admitted for hearing by the Hon’ble Supreme

Court, which led to the issuance of the Impugned Short Order.

11. That being aggrieved and dissatisfied by the Impugned Short Order, the

Appellant prefers this appeal on, inter alia, the following grounds:

The facts have been stated on the basis of the Impugned Short Order. The Appellant reserves the

right to and would respectfully and humbly crave the permission of this Hon’ble Court to provide

additional facts after the detailed judgments are handed down in relation to the question of

maintainability, constitutionality (or lack thereof) of the applicable provisions (with Mr. Justice

Yahya Afridi also handing down his reserved order in relation to the same) and the consequential

relief granted by the Hon’ble Bench.

GROUNDS

A. That, without prejudice to the grounds taken hereunder, it is respectfully

submitted that the Appellant is fully committed to upholding the

fundamental rights, and is, in no manner, arguing that the individuals

accused of the incidents of 9th and 10th May 2023, or any other individuals

being tried by the Court Martial are not entitled to the fair trial and due

process. Instead, the Appellant asserts that the Court Martial established

under the Army Act has at several instances been declared by this Hon’ble
 Court as constitutional and fully compatible with the principles of fair trial

and the due process of law. Furthermore, the Appellant seeks the guidance

of this Hon’ble Court that if any additional safeguards are to be provided

for the preservation of fundamental rights.

B. That it is respectfully submitted that the Petitions were/are not

maintainable in terms of and under Article 184(3) of the Constitution.

C. That it is respectfully submitted that the Petitions sought to invoke the

original jurisdiction of this Hon’ble Court which, with utmost respect and

reverence, is to be exercised sparingly. The assumption of ‘extraordinary

jurisdiction’ by the Hon’ble Bench, with utmost respect and reverence, was/is

not tenable in the light of the test delineated in Article 184(3) as well as the

settled jurisprudence in relation to this area.

D. That it is respectfully submitted that the proper course would have been

to direct the Petitioners to approach the appropriate forum for the

redressal of their alleged grievances. However, and with utmost respect and

reverence, the Hon’ble Bench proceeded to exercise its extraordinary

jurisdiction which resulted in the passing of the Impugned Short Order.

E. That it is respectfully submitted that given the earlier precedents of this

Hon’ble Court (most notably Brig (R) F.B. Ali and another v. The State (reported

as PLD 1975 SC 506), Government of Pakistan v. S.H.T. Leelan and others

(reported as 2004 SCMR 1761), Mushtaq Ahmed v. Secretary, Ministry of Defence

and others (reported as PLD 2007 SC 405)), the only permissible route, with

utmost respect and reverence, was to follow the earlier binding precedents and

reiterate the procedural safeguards delineated therein, if at all. The Hon’ble

Bench, with utmost respect and reverence, however, decided to assume

jurisdiction and handed down the Impugned Short Order by departing

 from the binding precedents and without giving any concrete basis for the

same.

F. That it is respectfully submitted that the Impugned Short Order, with utmost

respect and reverence, does not particularise the specific violation of the

fundamental rights enshrined in the Constitution and/or on what basis

have the provisions of the Army Act been declared to be unconstitutional.

G. That it is respectfully submitted that the Petitioners did not challenge or

bring before the Hon’ble Bench a new legislative instrument which had

not been tested earlier on the anvil of the Constitution (or any infraction,

inter alia, of any of the Fundamental Rights guaranteed therein) or which

had not been interpreted earlier by the Superior Courts of Pakistan. Thus,

and given that s. 2(1)(d) and s. 59(4) of the Army Act had earlier been

declared to be intra vires the Constitution, the Hon’ble Bench could not

have re-visited the issue, not least, without forming a larger bench.

H. That it is respectfully submitted that the Army Act is immune from any

constitutional challenge by virtue of the protection afforded to it by Article

8(3)(a) of the Constitution. This principle has been affirmed by this

Hon’ble Court on several occasions and in some instances by a bench

equal to or of a greater numeric strength than a five-member bench.

I. That it is respectfully submitted that the said provision envisages two

distinct scenarios in which Article 8(1) and 8(2) do not apply (and

consequently any such law which falls within the said scenarios is immune

from a challenge on account of being in violation of the rights conferred

by Chapter I of Part II of the Constitution) viz. when a law relates to “the

proper discharge of their [Armed Forces] duties” and for “maintenance of discipline

among them [members of the Armed Forces]” . Thus, and given that the present
 situation relates to both the scenarios, the Hon’ble Bench (or the majority

decision, as applicable) could not have declared the aforesaid provisions of

the Army Act as unconstitutional.

J. That it is respectfully submitted that, without prejudice to the generality of

the foregoing, the rights of the accused under the Army Act, the Army

Rules and the Manual of Pakistan Military Law are in no material manner

any less than those of an accused who is being tried by any other ordinary

or special court of criminal jurisdiction. Furthermore, the procedural

safeguards available in such a case have also been elaborately discussed by

the Superior Courts of Pakistan including the Hon’ble Supreme Court on

more than one occasion. However, and with utmost respect and reverence, the

Impugned Short Order does not afford any consideration to this crucial

aspect of the matter.

K. That it is respectfully submitted that the decision rendered by a Court

Martial is subject to the filing of a revision before the Federal Government

or the Chief of the Army Staff, as the case maybe, and thereafter can also

be challenged before the respective High Court(s) and the Supreme Court.

It is also germane to note that the Superior Courts have on a number of

occasions intervened and granted relief in situations where it appeared to

them that the rights of the accused stood compromised in any manner or

that the procedure adopted during the trial suffered from any material

lapses. Thus, and in the presence of the aforesaid safeguards, the Hon’ble

Bench should have dismissed the Petitions and could have taken up the

matter when it reached them in the usual course or scheme of things.

L. That it is respectfully submitted that Article 175(3) of the Constitution has

no application in the present matter. Alternatively, it is respectfully

submitted, that there is no infraction or violation of the same.

 M. That it is respectfully submitted that, without prejudice to the aforesaid,

the Army Act is not the only legislative instrument which creates a special

forum for adjudication of a distinct class of offences. In the past, the

federation as well as provinces have established various judicial and quasi-

judicial forums entirely independent from the hierarchy of district

judiciary. The creation of these special forums was necessitated, inter alia,

due to the severity of the offences and/or deficiency of requisite expertise

in the ordinary judicial system. Moreover, this Hon’ble Court has at several

instances upheld the constitutionality of such forum and stipulated that the

mere fact that a forum has a special procedure does not render it

unconstitutional. It is pertinent to enumerate that the Court Martial is not

an arbitrary procedure rather it is a specialized procedure delineated under

the provisions of the Army Act, Army Rules, and the Manual of Pakistan

Military Law. The trials conducted under the Court Martial do not, in any

manner, curtail the rights guaranteed under the law, and fully uphold the

principles of natural justice, due process of law, and fair trial.

N. That the Impugned Short Order, with utmost respect and reverence, suffers from

material errors of law which are apparent on the face of the record and as

such is liable to be set aside.

O. The Appellant reserves the right to and will crave the respectful and

humble permission of this Hon’ble Court to add and/or urge further

grounds when the detailed judgements are released and/or at the time of

hearing.

The grounds have been framed on the basis of the Impugned Short Order. The Appellant reserves

the right to and would respectfully and humbly crave the permission of this Hon’ble Court to

frame further grounds after the detailed judgments are handed down in relation to the question of
 maintainability, constitutionality (or lack thereof) of the applicable provisions (with Mr. Justice

Yahya Afridi also handing down his reserved order in relation to the same) and the consequential

relief granted by the Hon’ble Bench.

PRAYER

It is therefore, most humbly prayed that this Hon’ble Court may be pleased to allow

this appeal, set aside the Impugned Short Order dated October 23, 2023, passed in

Const. Petition No.24, 25, 26, 27, 28, 30 and 35 of 2023.

Any other relief that this Hon’ble Court deems fit and proper may also be granted.

DRAWN AND SETTLED BY: FILED BY:

JAHANZEB AWAN MUHAMMAD SHARIF JANJUA

ADVOCATE SUPREME COURT ADVOCATE ON RECORD
Supreme Court of Pakistan

For the Appellant.

CERTIFICATE

It is certified that this is the first intra-court appeal filed by the Appellant before this
Hon’ble Court against the majority judgment dated October 23, 2023, passed in Const.
Petition No.24, 25, 26, 27, 28, 30 and 35 of 2023.

Advocate-on-Record
 IN THE SUPREME COURT OF PAKISTAN
APPELLATE JURISDICTION

CMA NO. _____ OF 2023

IN
INTRA-COURT APPEAL NO. ______ OF 2023

THE PROVINCE OF SINDH,

… APPLICANT/APPELLANT

VERSUS

JAWWAD S. KHAWAJA AND OTHERS.

… RESPONDENTS

APPLICATION ON BEHALF OF THE APPLICANT/APPELLANT UNDER ORDER XX

RULE 1 READ WITH ORDER XXXIII RULE 6 OF THE SUPREME COURT RULES,
1980 AND ALL OTHER ENABLING PROVISIONS OF LAW FOR GRANT OF INTERIM
RELIEF

The Applicant/Appellant respectfully submits:

1. That the Applicant/Appellant has filed the above titled appeal before this
Hon’ble Court, the contents of which may kindly be read as an integral
part of this application.

2. That the Applicant/Appellant has impugned the Order of this Hon’ble

Court rendered in CP No. 24 of 2023 (and other connected cases) dated

October 23, 2023.

3. That by way of the Impugned Short Order the Hon’ble Bench (with Mr.

Justice Yahya Afridi reserving the decision on this aspect) declared s.

2(1)(d), and 59(4) of the Army Act ultra vires the Constitution and of no

legal effect, and certain consequential directions have also been,

unanimously, issued therein.

4. That for the detailed reasons stated in the accompanying petition the

Impugned Short Order passed by the Learned five-member bench, with

utmost respect and reverence, is not sustainable and with greatest respect is liable

to be set aside.

5. That the Applicant/Appellant has a good prima facie case, and the appeal is

likely to succeed. The balance of convenience lies in favour of granting the

interim relief, otherwise the due process of law will be frustrated, causing

an irreparable loss to the Appellant as well as the members of the Armed

Forces, and the public at large.

PRAYER:

In view of the above, the Applicant/Appellant prays that this Hon’ble Court may

be pleased to suspend the operation of the Impugned Short Order dated October

23, 2023, pending this appeal.

DRAWN AND SETTLED BY: FILED BY:

JAHANZEB AWAN MUHAMMAD SHARIF JANJUA

ADVOCATE SUPREME COURT ADVOCATE ON RECORD
Supreme Court of Pakistan

For the Applicant.

 IN THE SUPREME COURT OF PAKISTAN
APPELLATE JURISDICTION

INTRA-COURT APPEAL NO. ______ OF 2023

THE PROVINCE OF SINDH,

… APPELLANT

VERSUS

JAWWAD S. KHAWAJA AND OTHERS.

… RESPONDENTS

AFFIDAVIT ON BEHALF OF THE APPELLANT I.E., THE PROVINCE OF SINDH

I _______________, deponent do hereby solemnly affirm and declare as under:

 That I am the duly authorized officer of the Appellant in the captioned

case. I do hereby state that the facts as contained in the accompanying
appeal are true and correct to the best of my knowledge and belief, and
nothing material has been concealed or withheld.

DEPONENT

Verification:
Verified on oath on this ____ day of November 2023 at ___________ that the
contents of this accompanying affidavit are true and correct to the best of my
knowledge and belief.

DEPONENT
 IN THE SUPREME COURT OF PAKISTAN
APPELLATE JURISDICTION

Intra-Court Appeal No. ______ of 2023

THE PROVINCE OF SINDH

…APPELLANT

VERSUS

JAWWAD S. KHAWAJA AND OTHERS

… RESPONDENTS

Court appealed from: Impugned Short Order dated October

23, 2023, passed by the Hon’ble
Supreme Court in the Constitutional
Petitions Nos. 24, 25, 26, 27, 28, 30,
and 35 of 2023.

Counsel for the Appellant: Barrister Jahanzeb Awan, Advocate

Supreme Court with Muhammad
Sharif Janjua, Advocate-on-Record,
Supreme Court of Pakistan, Islamabad.

Counsel for the Respondent:

INDEX

S R. DESCRIPTION DATE PAGE NO.

NO.
1. Intra Court Appeal 17-11-2023 1-11
2. Impugned Short Order of the Hon’ble 23-10-2023
Supreme Court in Const. P Nos. 24,
25, 26, 27, 28, 30, and 35.
3. Copy of the Grounds of Const. P No.
24 of 2023
4. Copy of Comments filed by the
Appellant in Const. P No. 24 of 2023
5. Relevant extracts from Pakistan Army
Act, 1952
6. ICJ Review and Reconsideration Act,
2021
7. Copy of Press Release by Inter- 15-05-2023
Services Public Relations
8. Copy of Press Release by Inter- 07-06-2023
Services Public Relations
9. Copy of Resolution passed by 12-06-2023
National Assembly
10. Copy of Press Release by Ministry of 19-06-2023
Foreign Affairs
11. List of individuals in custody
12. F.I.R No.96 (P.S. Sarwar Road) 10-05-2023
13. F.I.Rs No.833 and 427 09-05-2023
 14. Supreme Court order in S.M.C No.1 23-02-2023
of 2023
15. Constitution(Twenty-First)
Amendment Act, 2015
16. Pakistan Army (Amendment) Act,
2015
17. Constitution(Twenty-Third)
Amendment Act, 2017
18. Pakistan Army (Amendment) Act,
2017
19. Gopal Upadhyaya and Ors. Vs Union of
India, AIR 1987 SC 413
20. Photographic evidence of violence on
09-05-2023
21. Estimation of financial losses incurred
by the events of 09-05-2023
22. Provocative social media messages
triggering the events of 09-05-2023
23. CMA for Grant of Stay 17-11-2023
24. Affidavit of Appellant 17-11-2023
25. Affidavit of AOR 17-11-2023
26. Notice 17-11-2023

Certified that the paper-book has been prepared in accordance with the Rules
of the Court and that all documents necessary for appreciation of the case
law have been included.

Date: 17-11-2023

MUHAMMAD SHARIF JANJUA

ADVOCATE-ON-RECORD
SUPREME COURT OF PAKISTAN, ISLAMABAD