The devastating events of 1971 left an enduring trauma of secession on Pakistan’s judiciary, which consequently grew wary of, and at times hostile toward, any movement perceived as dissent. This insecurity manifested in a pattern of scrutiny and condemnation rooted in the institution’s own lament over having legitimized previous autocracies, and later compounded by its eventual rejection of military rule. Asma Jilani case revoked Dosso, which gave legality to Ayub’s coup. It was Justice Hamood who said that Dosso, “was never fully justified on Kelsenian grounds.”[1] But the initial push was bound to come to grief. It is tragic that the sole remedy for an excess of one extreme is a plunge into the opposite extreme. F.B Ali vs The State is one example.
In the said case, “the court distinguished its proceedings from military courts. It proposed that where criminal courts and martial law had concurrent jurisdiction, the military could decide in which forum to try the case.”[2] The appellants, Brig (Retd.) FB Ali and Colonel (Retd.) Abdul Aleem Afridi, retired from the Army on 10th August 1972. Between August 1972 and 30 March 1973, the appellants were alleged to have conspired against the government and planned to put the government officials under arrest using the troops at their disposal. In addition, they were also accused of seducing the officials of the Pakistan Army to join them in the conspiracy. The appellants were arrested on 30 March 1973, and a court-martial convened on 9 July 1973. The charges are as follows:
- Under Section 59 of the Pakistan Army Act, read with Section 121-A PPC: Conspiring to wage war against Pakistan, a civil offense tried under the Army Act by invoking the deeming clause in Section 59.
- Under Section 31(d) of the Pakistan Army Act: Attempting to seduce persons in the Military Forces of Pakistan from their allegiance to the Government.
The appellants were brought within the Army Act’s jurisdiction through Section 2(1) (d), introduced by Defence Services Laws (Amendment) Ordinance III of 1967, which made subject to the Army Act any persons, including civilians and retired officers, accused of seducing or attempting to seduce any person subject to the Act from his duty or allegiance to the Government. The appellants’ objections were overruled by the Court Martial, and a petition was filed before the High Court. The appellants were convicted by the Court Martial on 2 March 1974, and the writ petition was dismissed on 20 May 1974. The special appeal was granted to the Supreme Court on 18 March 1975. The Supreme Court had to consider these issues:
- Whether the retired army officials could be brought within the ambit of Section 2(1) (d) as introduced by Ordinance III of 1967.
- Whether the two Ordinances were within the legislative competence of the President under Article 29 of the Constitution of 1962, read with Article 131 and the Third Schedule.
- Whether the Ordinances, by depriving citizens of the ordinary norms of a judicial trial, such as a detailed reasoned judgment, appellate rights before superior courts, and preliminary Magisterial inquiry, could be regarded as law within the meaning of Fundamental Right No. 1
of the 1962 Constitution, which guaranteed that no person shall be deprived of life or liberty save in accordance with law.
- Whether singling out persons accused of seducing military personnel for trial by Court Martial, while other offenders under Chapter VII of the Penal Code remained triable by ordinary courts, constituted unreasonable discrimination violating the equal protection guarantee.
- Whether the offence of conspiracy to wage war under Section 121-A PPC, a civil offence, was triable by the Court Martial under Section 59(1) of the Army Act, given that the offence was committed before the appellants became subject to the Army Act.
In regards to issue number 1, the court held categorically that, “the words of clause (d) introduced into section 2 of the Army Act by Ordinance No. III of 1967, are clear enough. The words “persons not otherwise subject to this Act” clearly embrace all others who are not subject to the said Act by reason of the provisions of clauses (a), (b), (bb) and (c).”[3] The nexus, accordingly, “was provided by the accusation.”
On issue number 2 and 3, the judgement noted that the “power to make and promulgate Ordinances under the Constitution of 1962 was derived from Article 29 of the said Constitution, and by clause (v) thereof, the power extended “only to the making of laws within the legislative competence of the Central Legislature.” The power of the Central Legislature to make laws was circumscribed by Article 131 of the said Constitution to the matters enumerated in the Third Schedule thereof.” For context, Section 131 of the PPC addresses mutiny and seduction within the armed forces. Since that offence was already covered by existing law, the appellants argued that in pith and substance the amendment “was indeed a cloak to delete the provisions of Section 131 of the Penal Code,” thus establishing a parallel court. The appellants further argued that the Third Schedule contained no entry authorizing such an amendment. The court ruled that in the pith and substance, the “object of the Act was…to prevent the loyalty of the defence personnel from being subverted by outside influence. The legislation, therefore, in my opinion, came directly within item 1 of the Third Schedule of the 1962 Constitution. It did not amend either section 131 or section 139 of the Penal Code. ” The court also rejected the appellants’ submission that the legislative list ought to be read strictly and narrowly.
Turning to issue of depriving citizens of the ordinary norms of a judicial trial, such as a detailed reasoned judgment, appellate rights before superior courts, and preliminary Magisterial inquiry, and whether this could be regarded as law within the meaning of Fundamental Right No. 1 of the 1962 Constitution, the court rejected the appellants’ ground of unreasonable discrimination. The Court’s argument was simple. The added clause (d) constituted “a general category and extends to all persons who come within the mischief of the said clause and, therefore, it is a valid classification on a rational basis and there is no discrimination at all.” Equal protection, per the court, does not mean that every citizen, no matter what his condition, must be treated in the same manner.
As far as the pith and substance doctrine is concerned, it must be noted that the said doctrine forces the court to look at the incidental effects and identify the dominant purpose of the legislative. Caveat: the determination of purpose or the true character lies with the court. The Court, for instance, defined the pith and substance of the Ordinances by reference to their intended effect on defence, while simultaneously dismissing the appellant’s argument that their actual effect was to alter criminal procedure for civilians. Both characterizations were equally valid descriptions of the same legislation. Having said this, there was also a presumption of constitutionality that the court had up its shoulder, thus referring to the classification as “constitutionally permissible classification.”[4] The two, stacked together and feeding upon each other, act as genuine tools of constitutional demarcation and instead become a mechanism for upholding virtually any legislation plausibly connected to a permitted legislative head.
In addition to this, it is pertinent to also note Justice Anwarul Haq’s dissent. The majority bench, termed law “under the 1962 Constitution, would, in its generally accepted connotation, mean positive law, that is to say, a formal pronouncement of the will of the competent lawgiver and that there was no condition that a law must, in order to qualify as such, also be based on reason or morality.” The dissenting note asked the “‘law’, as used in this Fundamental Right,’’ to “be construed as also including the judicial principles laid down from time to time by the superior Courts, and the accepted forms of legal process and juridical norms obtaining in Pakistan.” To support this dissenting view, Justice Anwarul Haq specifically referred to Chief Justice Hamoodur Rahman’s own past ruling in the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri, in which the honourable Chief Justice had noted that the, “term law is not to be “confined to statute law alone, but is used in its generic sense as connoting all that is treated as law in this country, including even the judicial principles laid down from time to time by the superior Courts.” The majority’s positivist reading of law established one fact. If the ordinances, for instance, are enacted constitutionally, the rest equals nil.
The court’s response to the last issue is also significant. The court held that a Court Martial can only try a civil offence committed after the accused became subject to the Army Act, as Section 59(1)’s use of “commits” in the present tense imposes a strict temporal condition. Since the Section 121-A PPC conspiracy predated the appellants’ subjection to the Act, and Section 59(4) could not cure this, as it is confined only to offences explicitly listed in Section 2(1) (d), the Court Martial was held to lack jurisdiction. While the judgment rightly guards against retroactive military jurisdiction, the selective validation of the remaining conviction raises concern.
This case laid the ground for the Islamic Republic of Pakistan v. Abdul Wali Khan5 (NAP reference), which makes it more tragic. In the NAP reference case, the Supreme Court dissolved a party on not-soclear grounds, interpreting liberally and strictly as it went, and giving away its authority while trying to keep some at the same time. Nexus, as defined and interpreted in F.B Ali, requires discussion still. Decades later, Justice Mandokhel recalled this very point by asking, “What was the definition of nexus in the F.B. Ali case?”[5] To which Salman Akram Raja said, “Incitement against the armed forces and the connection of the crime with the defence of Pakistan.”[6]
The question of how that nexus standard should apply under the current constitutional framework was taken up more directly in subsequent jurisprudence. J. Munib Akhtar, further in the Jawwad Khawaja case, mentioned explicitly that, “it must be emphasized that F.B. Ali was decided within the frame of a constitutional dispensation that did not have any equivalent to Article 8(5). The existence of a legislative competence in terms of the ‘nexus’ theory does not therefore mean that such competence can be exercised in the same manner under the present Constitution as was possible under the 1962 Constitution. Now, the gateway is not just guarded but kept firmly shut, for reasons already set out, by Article 8(5).”[7] Building on this, Learned Judge wrote further, “thus, and with great respect, the observation of the learned Chief Justice in F.B. Ali, that civilians can be tried by courts martial “even in time of peace”, does not hold true under the present Constitution, whatever may have been the position under the 1962 Constitution.”9 It deserves mention, moreover, that J. Ayesha Malik, in her concurring opinion, noted that the inclusion of article 10-A scrutinises, or for lack of better words, makes the establishment of nexus difficult.
On the basis of this reasoning, one would naturally assume that the old nexus theory is no longer sufficient to justify the trial of civilians by military courts, that the constitutional evolution since 1962 had firmly closed that door. That assumption, however, was short-lived. The subsequent decision in Shuhada Forum, Balochistan v. Justice (R) Jawwad S. Khawaja11 overruled the former case, leaving the trajectory of this area of law in considerable uncertainty once again. In the appellate judgment, the Supreme Court strongly reaffirmed the binding precedent of the F.B. Ali case, ruling that it established a definitive constitutional threshold requiring a direct and substantial nexus between a civilian’s alleged offence and the Armed Forces or the defence of Pakistan for military trials to be valid. The appellate bench emphasized that while Article 8 (3) (a) shields the Pakistan Army Act from fundamental rights challenges, this protection is not a blanket authorization to indiscriminately try civilians; rather, the longstanding F.B. Ali doctrine dictates that military jurisdiction is only constitutional when this requisite nexus is clearly demonstrated to justify an exception to the ordinary judicial process. Consequently, the court held that the previous bench committed a fundamental legal error by disregarding the established F.B. Ali nexus requirement without referring the matter to a larger bench, leading the appellate court to restore the military trial provisions for extraordinary cases implicating national security and military installations.
J. Mandokhel in his dissent drew a fine comparison between the shielding Article 8 (3) (a) of 1973 constitution and Article 6 (3) of the 1962 constitution.12 He observed that Article 6(3) of the 1962 Constitution is materially equivalent to today’s Article 8(3) (a). In F.B. Ali, the Court held that the impugned law did not serve the purpose contemplated by Article 6(3), namely ensuring the proper discharge of duties or maintaining discipline among members of the defence services or forces charged with maintaining public order. Therefore, if such a law was not protected under Article 6(3) of the 1962 Constitution, it cannot now be protected under Article 8(3) (a) of the present Constitution. The comparison is structurally elegant and analytically damaging to the majority’s position. If Article 6(3) of the 1962 Constitution and Article 8(3) (a) of the 1973 Constitution are materially equivalent in their protective scope, both shielding defence-related legislation from fundamental rights challenges only insofar as the law serves the purpose of ensuring proper discharge of duties or maintaining discipline, then the threshold question is not whether the shield exists, but whether the impugned legislation actually falls within it. In F.B. Ali itself, the Court found that the law in question did not meet that
- Ibid
- PLD 2015 Supreme Court 401
- 2025 SCP 165
- Sub clause (f) of clause (3) of Article 6 reads as follows: “(3) The provisions of this Article shall not apply to (i) any law relating to members of the Defence Services, or of the forces charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them;”
purpose under Article 6(3). J. Mandokhel’s dissent turns this against the Shuhada Forum majority: you cannot invoke a stronger constitutional protection for a law that failed the weaker one. The majority’s reaffirmation of F.B. Ali as establishing a permissive nexus doctrine thus cuts both ways, the same case that the appellate bench relied upon to restore military jurisdiction had, on its own terms, refused the protective shield to the very kind of legislation now being upheld. That internal contradiction within Shuhada Forum’s reasoning remains unaddressed. This concern was not isolated. J. Qazi Faez Isa, dissenting in District Bar Association, had already warned that invoking Article 8(3) to shield military jurisdiction from fundamental rights scrutiny represented a retrogressive compromise of constitutional guarantees, a warning that Shuhada Forum’s majority did not reckon with.
The evolution of military courts for civilians in Pakistan can be traced through a key list of cases: F.B. Ali v. The State (1975), Shahida Zahir Abbasi (1995), Mehram Ali (1998), Liaqat Hussain (1999),
Mushtaq Ahmad (2007), District Bar Association, Rawalpindi (2015), Said Zaman Khan (2017), Jawwad S. Khawaja (2024), and Shuhada Forum (2025). The legal framework initially took root with the F.B. Ali ruling, which established the “nexus” doctrine allowing civilians to be court-martialed if their offenses directly disturbed army discipline or the defense of Pakistan. While the judiciary placed limits on the executive by striking down parallel military tribunals formed entirely outside the Army Act in Mehram Ali and Liaqat Hussain, it continued to uphold civilian court-martials constituted within the Army Act in cases like Shahida Abbasi, Mushtaq Ahmad, and Said Zaman Khan, and later temporarily validated them under the 21st Constitutional Amendment in the District Bar Association case to try terrorists. This decades-long trajectory experienced a dramatic but brief reversal in 2024 when the Supreme Court in Jawwad S. Khawaja declared the military trial of civilians unconstitutional for violating modern fundamental rights and due process guarantees, only for the 2025 Shuhada Forum decision to subsequently set aside that ruling and once again restore the military’s jurisdiction over civilians.
The FB Ali v. The State judgment is a foundational yet deeply contested moment in Pakistan’s constitutional history. On its surface, it resolved discrete jurisdictional questions about retired officers and military courts. In substance, however, it established precedents whose consequences have reverberated across five decades of civil-military legal tensions.
The case reveals the judiciary operating under competing pressures: maintaining formal constitutional propriety while accommodating the expansive demands of military jurisdiction. The Court’s deployment of the pith and substance doctrine, rather than serving as a genuine tool of constitutional demarcation, effectively became a mechanism for legitimizing legislation so long as a plausible connection to defence could be constructed. Combined with a positivist reading of law that stripped Fundamental Rights of their procedural content, the majority foreclosed avenues of challenge that Justice Anwarul Haq’s dissent rightly kept open.
The nexus doctrine born in FB Ali proved remarkably durable, surviving constitutional transitions and repeated judicial scrutiny before facing its most serious challenge in Jawwad S. Khawaja. That the Shuhada Forum decision ultimately restored the pre-2024 position suggests that the core tension the case first exposed, between military necessity and civilian due process, remains constitutionally unresolved. FB Ali did not settle this question; it merely deferred it, and Pakistan’s courts continue to pay the interest on that deferral.
[1] Paula R. Newberg, Judging the State: Courts and Constitutional Politics in Pakistan (Cambridge University Press, 1995)
[2] Ibid
[3] PLD 1975 SC 506
[4] Hamid Khan, Constitutional and Political History of Pakistan 4h edn (Oxford University Press 2023) 5 PLD 1976 SC 57
[5] Umer Mehtab, ‘Justice Aminuddin Wonders How Trial for Same Offence by Army, Civilian Can Be Held in Different Courts’ (Dawn, 4 February 2025) https://www.dawn.com/news/1889704
[6] Ibid.
[7] PLD 2024 SC 337
