Military Courts case

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. The Supreme Court was petitioned in its original jurisdiction by lawyer Aitzaz Ahsan, retired chief justice of Pakistan Jawwad S. Khawaja, and the parents of the accused; 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. It also held that the accused 103 persons would be tried by civilian courts under ordinary criminal law. The decision was celebrated by legal experts, human rights groups, and civil society as 'brave' and 'truly historic'.

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. The formation of the appellate bench by Chief Justice Qazi Faez Isa was controversial, and the inclusion of the head of the bench, Justice Sardar Tariq Masood, objected to for having opposed the same petitions earlier. The new bench suspended the ruling, stating that the trials of civilians would continue in military courts.

On 8 May 2025, the appellate bench, having since been reconstituted as a Constitutional Bench under the Twenty-Sixth Amendment, overturned Jawwad S. Khawaja by a 5-2 majority, validated the trials, and restored § 2(1)(d). The reversal was widely denounced by lawyers as a 'judicial surrender'.

Military courts commenced in independent Pakistan to try religious leaders in the aftermath of the Lahore riots of 1953 and the imposition of city-wide martial law (the sentences were nullified when martial law was lifted the same year).

The trial of civilians by court martial was formalised in 1967 during the military dictatorship of Ayub Khan, in the form of § 2(1)(d) and § 59(4) being incorporated in the Pakistan Army Act, 1952. The provisions were applied shortly thereafter to retired Brigadier F. B. Ali, who was handed a life sentence for attempting to overthrow prime minister Zulfikar Ali Bhutto (Ali had also been linked earlier to sparking unrest within the military during the fall of the Yahya Khan regime).

When Ali eventually moved the Supreme Court in F. B. Ali v. The State, his appeal was dismissed in 1975 by a 5-member bench headed by chief justice Hamoodur Rahman; the decision would be used to justify the court-martial of civilians in subsequent cases, and formed the subject of extensive judicial discussion in Jawwad S. Khawaja over its value as precedent. Ali was released by the Zia-ul-Haq regime in 1978, after serving five years in prison.