Trial of General Pervez (retd): LHC had wrongly applied Mustafa Impex case: SC

ISLAMABAD: The Supreme Court (SC) held that the Lahore High Court (LHC) while declaring the Special Court, set up for the trial of General Pervez Musharraf (retired) under Article 6 of the constitution, illegal has wrongly applied Mustafa Impex case.

The detailed judgment of the Supreme Court authored by Justice Syed Mansoor Ali Shah said that in PMDC, the SC had held that the principle settled in Mustafa Impex did not have retrospective application, and applies only from the date of its pronouncement, i.e., 18.06.2016.

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 January 10, 2024, set aside the LHC judgment, which declared the Special Court, constituted for General Pervez Musharraf’s (retired) trial in high treason case, “unconstitutional” and subsisted conviction of former army chief under Article 6 of the constitution.

The SC judgment said if the ultimate relief sought relates to an act done or proceeding taken within the territorial jurisdiction of a particular High Court, no other High Court in the country can assume and exercise writ jurisdiction on the pretext that one of the reliefs sought relates to an act of a federal body. The splitting of claims and reliefs in several actions (suits or petitions) regarding one cause of action is also not legally permissible under Order II, Rule 2, CPC. No person can, therefore, seek relief regarding an act of a federal body from one High Court and relief regarding an act done in furtherance of or pursuance to that act from another High Court. Both reliefs must be sought in one petition and adjudicated by the High Court which has territorial jurisdiction over both acts.

It said the LHC had no such jurisdiction; it wrongly assumed and exercised the jurisdiction that was not vested in it by the Constitution with regard to the acts done and proceedings taken outside its territorial jurisdiction.

The apex court noted that the Special Court conducting the trial of the respondent for the offence of high treason was constituted under a special law i.e., the Special Court Act. Section 3 of the Special Court Act confers exclusive jurisdiction on the Special Court to try certain offences, including any offence punishable under the High Treason Act.

The writ jurisdiction of the High Court cannot be exploited while having an alternate equally efficacious and adequate remedy provided under the law; such remedy cannot be bypassed to attract the writ jurisdiction. The doctrine of exhaustion of remedies accentuates that a litigant must not circumvent or bypass the provisions of the relevant law that provide for an adequate remedy. If a party does not choose the remedy available under the law, the writ jurisdiction of the High Court cannot be invoked and exercised in his favour.

The judgment held that the remedy of appeal provided before this Court by Section 12(3) of the Special Court Act against the judgment of the Special Court was an alternate, adequate and efficacious remedy. And, as we have already noted above, the main grievance agitated and the ultimate relief sought in the writ petition was about the acts and proceedings of the Special Court, which could only be agitated before this Court in appeal.

Failing to adhere to the judgments and orders of the Supreme Court undermines the credibility and effectiveness of the entire judicial system established by the Constitution. Judgments of this Court being binding on all judicial and executive authorities of the country is a constitutional obligation under Articles 189 and 190 of the Constitution.

This obligation reflects a fundamental commitment to preserving the integrity and sanctity of the Supreme Court. Disregard of the abovementioned judgments and orders by the LHC amounts to judicial effrontery and impropriety. The impugned judgment passed by the LHC in sheer violation of the judgments and orders of this Court is, therefore, not only without jurisdiction but also unconstitutional.

Copyright Business Recorder, 2024