— Trial of civilians by courts martial — Jurisdiction of courts martial — Legislative competence to establish courts martial — Scope — Petitioners challenged the trial of civilians under the Pakistan Army Act, 1952, following unprecedented events on 9th and 10th May, 2023, which included assaults on military installations and desecration of national monuments — The Army High Command and the Federal Government condemned the acts, expressing the intent to conduct trials through courts martial — FIRs were registered against civilians and they were transferred for court martial trials, leading the petitioners to challenge the constitutionality of trying civilians in military courts — Petitioners contended that courts martial were not courts at all, and hence no jurisdiction could be conferred on them by reason of the embargo contained in Article 175(2); that even if they were courts, they violated the requirement of Article 175(3) inasmuch as they were manned by military officers, i.e., the executive branch and that while the constitutional status of courts martial might be acceptable for the members of the armed forces but subjecting civilians to trial before such a forum should be deemed unconstitutional — Validity — It would be incorrect to test courts martial on the anvil of clause (3) of Article 175 — The separation thereby required seeks to disentangle a prior amalgam between the judiciary and executive of an entirely separate and different nature — It has nothing to do with courts martial — However, courts martial cannot be created outside of, or be allowed to exist and operate independently from the military justice system created by and under a statute of the nature of the Pakistan Army Act, 1952 — The authority to include clause (d) in S. 2(1), allowing the trial of civilians by courts martial, is vested in entry no. 1 of the Federal Legislative List — The trial of civilians by court martial is very much an ancillary or subsidiary function of such forums — Existing as they do within the military justice system, and confined as they are to the four corners of the Pakistan Army Act, 1952, the principal function (indeed, their raison d’être) is to deal with the members of the Armed Forces — The subsidiary nature of the legislative competence with regard to civilians is further indicated by entry nos. 58 and 59 of the Federal Legislative List which relate respectively, to matters within the legislative competence of the Federation or relating thereto, and matters incidental and ancillary to others provided in the Schedule — Thus, courts martial and the military justice system, are within the scope of the legislative competence. [2023 SCLR 31 = 2023 SCMR 1732]

— Right to fair trial — Trial by an independent court — Scope — The basic principle of the independence of the judiciary is that everyone is entitled to be tried by the ordinary courts or tribunals established under the law and the trial of a citizen by a military court for an offence which can be tried before the courts established under Article 175 of the Constitution offends the principles of independence of the judiciary and of fair trial. [2023 SCLR 31 = 2023 SCMR 1732]