Peshawar High Court Upholds Right to Challenge Military Court Convictions through Writ Petitions
PESHAWAR – In a significant ruling that could reshape the legal landscape surrounding civilian trials in military courts, the Peshawar High Court (PHC) has declared that individuals convicted by military courts have the constitutional right to file writ petitions in high courts. The landmark judgment comes amid growing public and legal scrutiny over the legitimacy and transparency of military court proceedings in Pakistan, particularly after the May 9, 2023 unrest.
The court’s decision, issued on Saturday by a two-member bench comprising Justice Wiqar Ahmad and Justice Sadiq Ali Memon, has been welcomed by human rights activists and legal experts. It reaffirms that the judiciary must provide judicial oversight even in cases where military institutions are involved.
Background: The May 9 Incident and Controversial Convictions
The ruling was issued in connection with a writ petition filed by Adnan, a resident of Mardan, along with several other petitioners. These individuals were accused of being involved in the violent protests that erupted after the arrest of the Pakistan Tehreek-e-Insaf (PTI) founding chairman on May 9, 2023.
According to the petitioners, they had no involvement in the unrest that occurred in Mardan city, yet they were arrested, booked in a First Information Report (FIR), and later handed over to military authorities. In a surprising twist, while some co-accused were tried in anti-terrorism courts (ATCs), these petitioners were referred to military courts without explanation.
This difference in treatment raised serious legal and constitutional questions. Why were some accused civilians tried under regular laws while others were subjected to military law? The petitioners claimed that they were not provided access to charge sheets, trial records, or decisions of the Chief of Army Staff, making it impossible for them to understand or challenge the verdicts in a timely manner.
Federal Government’s Objection to Writ Petitions
During the court proceedings, the federal government, represented by the Deputy Attorney General, opposed the maintainability of the writ petitions. The government argued that since the military courts had delivered convictions, the petitioners were required to approach the designated appellate forums, which they had failed to do within the specified time frame.
The Deputy Attorney General maintained that the writ petition was “time-barred”, and therefore the high court lacked jurisdiction to hear it. He stressed that alternative legal remedies existed and should have been exhausted first.
Petitioners’ Arguments: Rights Denied and Appeals Blocked
In response, Barrister Amirullah Chamkani, the counsel for the petitioners, argued that the federal government had not implemented the Supreme Court’s directions to establish proper appellate forums under the Pakistan Army Act. As a result, the time for filing appeals had not even begun, as the necessary legal framework was missing.
He also explained that the petitioners were completely unaware of the specific charges against them or the evidence presented during the military court proceedings. They were not even provided with the basic trial documents, including judgments or statements from witnesses. Therefore, expecting them to file appeals within a limited timeframe was unreasonable and unconstitutional.
Chamkani further noted that the Supreme Court of Pakistan had already acknowledged in a short order that writ petitions can be filed in high courts by individuals convicted by military courts, which meant that the constitutional right of judicial review remained intact.
PHC Observations: Judicial Oversight Cannot Be Abandoned
The PHC bench carefully reviewed the legal arguments presented by both sides and emphasized that constitutional jurisdiction cannot be abdicated merely because the cases involve military courts.
The court rejected the federal government’s objections and concluded that:
“Where an alternative remedy is either unavailable or has become ineffective due to lapse of time or legal obstacles, a writ petition remains a valid and constitutional recourse.”
This powerful observation highlighted the role of the judiciary in upholding fundamental rights even when national security institutions are involved. The court made it clear that military court verdicts are not above constitutional scrutiny, especially when basic rights to fair trial and legal representation have been violated.
Reference to Brigadier Ali’s Case and Supreme Court Precedents
To further support its ruling, the PHC cited the Brigadier Ali case, in which several provisions of the Army Act were challenged. The high court pointed out that judicial review of military court decisions is not a new or radical idea. In fact, it is well-established in Pakistani jurisprudence.
The court also referred to a Supreme Court bench that had earlier upheld the trial of civilians under the Army Act but explicitly affirmed the right of such convicts to approach high courts under Article 199 of the Constitution.
This acknowledgment by the highest court of the land provided the PHC with a strong foundation to reject the federal government’s claims about jurisdictional limitations.
Access to Trial Records: A Right, Not a Privilege
In addition to ruling on the maintainability of the writ petitions, the PHC also disposed of a related application filed by the petitioners. This application complained that they had been denied access to essential trial documents, including:
-
The charge sheets
-
The summary of evidence
-
The written decision by the Chief of Army Staff
-
Details of legal proceedings during the trial
The federal government failed to justify why these documents were withheld. The PHC firmly stated that the petitioners had the right to access all such material to prepare their legal defence and pursue appeals or writs effectively.
The court directed the federal government to provide certified copies of all relevant trial material to the petitioners without further delay. However, the court did acknowledge the sensitivity of certain documents, such as the final verdicts by the Chief of Army Staff, which could not be made public due to national security concerns.
Nevertheless, all other trial records that formed the basis of conviction must be shared with the accused, ensuring transparency in judicial processes.
Impact on the Ongoing Debate over Military Trials of Civilians
This judgment by the Peshawar High Court comes at a time when civilian trials in military courts are facing increased public scrutiny. Human rights organizations, legal bodies, and opposition parties have repeatedly voiced concerns over the lack of transparency, due process, and fair trial standards in military court proceedings.
The May 9 protests, which were triggered by the arrest of the PTI leader, led to a massive crackdown across Pakistan. Hundreds of civilians, including political workers and even minors in some cases, were arrested and tried in military courts under the Pakistan Army Act and Official Secrets Act.
Critics have argued that this approach undermines the civilian justice system and creates a parallel legal structure where constitutional safeguards are not guaranteed.
The PHC’s ruling now adds legal weight to those concerns by reasserting that:
-
The right to legal defence is sacrosanct.
-
Military convictions can and should be challenged when constitutional rights are violated.
-
The judiciary has a duty to review such cases.
Legal and Political Reactions
Legal experts have hailed the PHC decision as a “landmark ruling”, setting a precedent for other high courts to follow. Speaking to media outlets, constitutional lawyers emphasized that the ruling restores faith in the ability of Pakistan’s judiciary to act independently and protect civil liberties.
Human rights advocates, including the Human Rights Commission of Pakistan (HRCP), welcomed the decision and urged the government to implement the court’s orders without delay. They also called for a broader review of civilian trials by military courts, labeling them as a violation of international law and Pakistan’s own constitution.
On the political front, opposition parties — particularly the Pakistan Tehreek-e-Insaf (PTI) — have praised the court’s decision. They argue that many of their supporters and leaders have been unfairly convicted or detained, and this ruling opens the door for them to seek justice through regular judicial processes.
Conclusion: A Defining Moment for Constitutional Rights
The Peshawar High Court’s ruling marks a turning point in the debate over the use of military courts for trying civilians. By recognizing the writ jurisdiction of high courts, the PHC has strengthened the constitutional right to fair trial and legal remedy, even for those prosecuted under military laws.
The judgment is expected to have far-reaching consequences, as more convicted individuals may now approach high courts to challenge their trials, demand access to records, and seek legal redress. It also sends a strong message to the federal government: constitutional rights cannot be suspended, even in the name of national security.
The court’s insistence on transparency, access to legal documents, and the availability of judicial review reinforces the principle that no institution is above the Constitution — a reminder that Pakistan’s judiciary remains a vital guardian of civil liberties and justice.
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Peshawar High Court Upholds Right to Challenge Military Court Convictions through Writ Petitions
PESHAWAR – In a significant ruling that could reshape the legal landscape surrounding civilian trials in military courts, the Peshawar High Court (PHC) has declared that individuals convicted by military courts have the constitutional right to file writ petitions in high courts. The landmark judgment comes amid growing public and legal scrutiny over the legitimacy and transparency of military court proceedings in Pakistan, particularly after the May 9, 2023 unrest.
The court’s decision, issued on Saturday by a two-member bench comprising Justice Wiqar Ahmad and Justice Sadiq Ali Memon, has been welcomed by human rights activists and legal experts. It reaffirms that the judiciary must provide judicial oversight even in cases where military institutions are involved.
Background: The May 9 Incident and Controversial Convictions
The ruling was issued in connection with a writ petition filed by Adnan, a resident of Mardan, along with several other petitioners. These individuals were accused of being involved in the violent protests that erupted after the arrest of the Pakistan Tehreek-e-Insaf (PTI) founding chairman on May 9, 2023.
According to the petitioners, they had no involvement in the unrest that occurred in Mardan city, yet they were arrested, booked in a First Information Report (FIR), and later handed over to military authorities. In a surprising twist, while some co-accused were tried in anti-terrorism courts (ATCs), these petitioners were referred to military courts without explanation.
This difference in treatment raised serious legal and constitutional questions. Why were some accused civilians tried under regular laws while others were subjected to military law? The petitioners claimed that they were not provided access to charge sheets, trial records, or decisions of the Chief of Army Staff, making it impossible for them to understand or challenge the verdicts in a timely manner.
Federal Government’s Objection to Writ Petitions
During the court proceedings, the federal government, represented by the Deputy Attorney General, opposed the maintainability of the writ petitions. The government argued that since the military courts had delivered convictions, the petitioners were required to approach the designated appellate forums, which they had failed to do within the specified time frame.
The Deputy Attorney General maintained that the writ petition was “time-barred”, and therefore the high court lacked jurisdiction to hear it. He stressed that alternative legal remedies existed and should have been exhausted first.
Petitioners’ Arguments: Rights Denied and Appeals Blocked
In response, Barrister Amirullah Chamkani, the counsel for the petitioners, argued that the federal government had not implemented the Supreme Court’s directions to establish proper appellate forums under the Pakistan Army Act. As a result, the time for filing appeals had not even begun, as the necessary legal framework was missing.
He also explained that the petitioners were completely unaware of the specific charges against them or the evidence presented during the military court proceedings. They were not even provided with the basic trial documents, including judgments or statements from witnesses. Therefore, expecting them to file appeals within a limited timeframe was unreasonable and unconstitutional.
Chamkani further noted that the Supreme Court of Pakistan had already acknowledged in a short order that writ petitions can be filed in high courts by individuals convicted by military courts, which meant that the constitutional right of judicial review remained intact.
PHC Observations: Judicial Oversight Cannot Be Abandoned
The PHC bench carefully reviewed the legal arguments presented by both sides and emphasized that constitutional jurisdiction cannot be abdicated merely because the cases involve military courts.
The court rejected the federal government’s objections and concluded that:
“Where an alternative remedy is either unavailable or has become ineffective due to lapse of time or legal obstacles, a writ petition remains a valid and constitutional recourse.”
This powerful observation highlighted the role of the judiciary in upholding fundamental rights even when national security institutions are involved. The court made it clear that military court verdicts are not above constitutional scrutiny, especially when basic rights to fair trial and legal representation have been violated.
Reference to Brigadier Ali’s Case and Supreme Court Precedents
To further support its ruling, the PHC cited the Brigadier Ali case, in which several provisions of the Army Act were challenged. The high court pointed out that judicial review of military court decisions is not a new or radical idea. In fact, it is well-established in Pakistani jurisprudence.
The court also referred to a Supreme Court bench that had earlier upheld the trial of civilians under the Army Act but explicitly affirmed the right of such convicts to approach high courts under Article 199 of the Constitution.
This acknowledgment by the highest court of the land provided the PHC with a strong foundation to reject the federal government’s claims about jurisdictional limitations.
Access to Trial Records: A Right, Not a Privilege
In addition to ruling on the maintainability of the writ petitions, the PHC also disposed of a related application filed by the petitioners. This application complained that they had been denied access to essential trial documents, including:
-
The charge sheets
-
The summary of evidence
-
The written decision by the Chief of Army Staff
-
Details of legal proceedings during the trial
The federal government failed to justify why these documents were withheld. The PHC firmly stated that the petitioners had the right to access all such material to prepare their legal defence and pursue appeals or writs effectively.
The court directed the federal government to provide certified copies of all relevant trial material to the petitioners without further delay. However, the court did acknowledge the sensitivity of certain documents, such as the final verdicts by the Chief of Army Staff, which could not be made public due to national security concerns.
Nevertheless, all other trial records that formed the basis of conviction must be shared with the accused, ensuring transparency in judicial processes.
Impact on the Ongoing Debate over Military Trials of Civilians
This judgment by the Peshawar High Court comes at a time when civilian trials in military courts are facing increased public scrutiny. Human rights organizations, legal bodies, and opposition parties have repeatedly voiced concerns over the lack of transparency, due process, and fair trial standards in military court proceedings.
The May 9 protests, which were triggered by the arrest of the PTI leader, led to a massive crackdown across Pakistan. Hundreds of civilians, including political workers and even minors in some cases, were arrested and tried in military courts under the Pakistan Army Act and Official Secrets Act.
Critics have argued that this approach undermines the civilian justice system and creates a parallel legal structure where constitutional safeguards are not guaranteed.
The PHC’s ruling now adds legal weight to those concerns by reasserting that:
-
The right to legal defence is sacrosanct.
-
Military convictions can and should be challenged when constitutional rights are violated.
-
The judiciary has a duty to review such cases.
Legal and Political Reactions
Legal experts have hailed the PHC decision as a “landmark ruling”, setting a precedent for other high courts to follow. Speaking to media outlets, constitutional lawyers emphasized that the ruling restores faith in the ability of Pakistan’s judiciary to act independently and protect civil liberties.
Human rights advocates, including the Human Rights Commission of Pakistan (HRCP), welcomed the decision and urged the government to implement the court’s orders without delay. They also called for a broader review of civilian trials by military courts, labeling them as a violation of international law and Pakistan’s own constitution.
On the political front, opposition parties — particularly the Pakistan Tehreek-e-Insaf (PTI) — have praised the court’s decision. They argue that many of their supporters and leaders have been unfairly convicted or detained, and this ruling opens the door for them to seek justice through regular judicial processes.
Conclusion: A Defining Moment for Constitutional Rights
The Peshawar High Court’s ruling marks a turning point in the debate over the use of military courts for trying civilians. By recognizing the writ jurisdiction of high courts, the PHC has strengthened the constitutional right to fair trial and legal remedy, even for those prosecuted under military laws.
