71. The Executive has been separated from the Judiciary and the Constitution prohibits a retrogressive step to be taken in this regard. The Proviso does not negate clause (3) of Article 175, nor does it conjure up the trial of civilians by the military or military-courts under Article 175. Since provisos merely limit or qualify the main enactment, the Proviso cannot be allowed to destroy or nullify clause (3) of Article 175. Clause (2) of Article 175 also does not permit conferment of jurisdiction on the military to conduct the trial of civilians in criminal cases; the same is also not contemplated by Article 245 of the Constitution.
The insertion of the Laws of the Armed Forces and the Protection of Pakistan Act into the First Schedule contravenes clauses (2) and (5) of Article 8. The insertion of such laws into the First Schedule cannot be done through the aegis of clause (3) of Article 8 of the Constitution either. The guarantees provided by Article 4 are in addition to those prescribed in the Fundamental Rights Chapter of the Constitution.
The categorization of terrorists who use the name of religion/sect is not a reasonable classification, and the Federal Government‘s absolute discretion to pick and chose from amongst them further offends it; consequently, the same is discriminatory and offends the equality principle encapsulated in Article 25 of the Constitution.
72. The learned Attorney-General subjected the open court to a number of video recordings; including arbitrary pronouncements of death sentences, followed by beheadings and a game of football with severed heads. Such histrionics and shock tactics demonstrated a reckless disregard for peoples‘ sensibilities, particularly the faint of heart and children who were present. We further saw members of an organization, whose self-proclaimed leader demands allegiance to a self-styled version of himself as Khalifa (Caliph) or Amir-ul-momineen (Leader of the pious); the Government states that it is in possession of evidence that confirms the said group to be an anti-state terrorist organization.
The 21st Amendment to the Constitution
(b) The military, which is a part of the Executive, cannot conduct criminal trials because judicial power can only be exercised by the Judiciary.
(c) Clause (3) of Article 175 no longer envisages the exercise of judicial power by the Executive and the Proviso added thereto cannot undo what has already taken place, i.e. the separation of the Judiciary from the Executive.
(d) To bifurcate from amongst those alleged to have committed terrorism and who are to be tried by Anti-Terrorism Courts under the Anti-Terrorism Act, 1997 a separate sub-category of those ―using the name of religion or sect‖ is not sufficiently precise and is also not a reasonable classification. The same, therefore, offends the principle of equality before the law and entitlement to equal protection before law as mandated by clause (1) of Article 25.
(e) The placement of the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014 in sub-part III of Part I of the First Schedule to the Constitution cannot be done pursuant to sub-paragraph (ii) of paragraph (b) of clause (3) of Article 8.
(f) Laws relating to the duties and the maintenance of discipline in the Armed Forces, the police or other forces may be excluded from the application of Fundamental Rights as stipulated in paragraph (a) of clause (3) of Article 8, but the said provision cannot be extended to provide for the trial of civilians by the military.
The Pakistan Army (Amendment) Act, 2015
6. (a) The military, which is a part of the Executive, cannot conduct criminal trials of civilians because judicial power can only be exercised by the Judiciary.
(b) The Pakistan Army (Amendment) Act, 2015 takes away and abridges Fundamental Rights mentioned in Chapter 1 of Part II to the Constitution therefore the same is void.
(c) All convictions, sentences passed or acquittals made of civilians tried by the military pursuant to the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014 are set aside and all such cases to be adjudicated afresh by the Anti-Terrorism Courts.
(d) All proceedings of civilians pending before the military pursuant to the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014 to be transferred to the Anti-Terrorism Courts.