Musharraf’s trial: SC says LHC verdict does not stand solely on basis of territorial jurisdiction

ISLAMABAD: The Supreme Court said the Lahore High Court (LHC)‘s verdict on former president and army chief General Pervez Musharraf’s (retired) petition against the Special Court’s judgment does not stand solely on the basis of territorial jurisdiction.

A four-member bench, headed by Chief Justice Qazi Faez Isa, and comprising Justice Syed Mansoor Ali Shah, Justice Athar Minallah, and Justice Aminuddin Khan, on Wednesday, heard the appeals of Bar Councils and others against the judgment of a three-member bench of the LHC.

The chief justice said when the Supreme Court had recognised the Special Court, established under the Criminal Law (Amendment) Special Court Act, 1976, for the trial of a former army chief in a high treason case, but the LHC dismissed it. The apex court in 2013 and 2016 had passed two orders regarding Musharraf’s trial before the Special Court.

The bench also noted that the LHC granted those remedies which were not sought in Musharraf’s writ petition. It said the prayer made before the LHC was for fair trial and due process. The bench further observed that the LHC disapproved of the whole process before the Special Court.

“The three judges of the LHC changed the judgment of three judges of the Special Court, which also had one judge from the Lahore High Court,” the bench said.

Hamid Khan, who appeared on behalf of ex-President LHCBA Tauseef Asif, submitted that even the federal government did not raise objection to territorial jurisdiction. He said; “The LHC’s whole judgment is void.”

Justice Mansoor inquired whether Barrister Ali Zafar, who was nominated amicus curiae, also did not raise this issue. Was there a jurisprudence of one page, and whether the amicus was also on the same page?

However, Additional Attorney General Aamir Rehman, present in the courtroom, clarified that the then Secretary Ministry of Law did raise objection of territorial jurisdiction before the LHC three-judge bench.

The chief justice questioned what constitutes a judgment of the court? He then answered himself saying, “Every order or writing on a piece of paper is not judgment.” He further said a sessions’ judge has the power to pass an order/ judgment to hang a person in murder cases, but can he decide a matter of the Family Court? Can the Supreme Court judges decide the case of a Family Court?

Justice Mansoor questioned when the notification was not challenged before the LHC then how could the SC’s judgment on Mustafa Impex, which the High Court judges relied upon while declaring Special Court unconstitutional, be applied? He stated the objections raised before the LHC were that; prosecution team was not constituted in accordance with the law; and the accused (Musharraf) was denied adjournments.

The chief justice inquired whether the High Court has the similar power to do complete justice, which is available to the Supreme Court under Article 187 of the Constitution. He said that under Act 1976 the only remedy the accused had was to file an appeal before the Supreme Court against the judgment of the Special Court.

The CJP noted that the whole trial of Musharraf was conducted in Islamabad, the complainant was from Islamabad, and the judgment against the accused was delivered by the Special Court in Islamabad then how come the LHC assumed jurisdiction?

A three-member bench of the LHC, headed by Justice Syed Mazahar Ali Akbar Naqvi, and comprising Justice Muhammad Masood Jahangir, and Justice Ameer Bhatti, on 13-01-2020 had declared; “That the Special Court was established without an iota of doubt that very basis of initiation of proceedings against the petitioner/ General Pervez Musharraf (retd), since its inception to the culmination are beyond the constitutional mandate, ultra vires, coram-non-judice, unlawful, hence, any superstructure raised over it shall fall to ground.” It further said; “Trial in absentia is declared as illegal, unconstitutional being repugnant to injunctions of Islam, as well as, Article 2-A, 8 and 10-A of the Constitution.”

The case was adjourn-ed until November 28.

Copyright Business Recorder, 2023