ISLAMABAD: The Supreme Court said the Lahore High Court (LHC) not only disregarded but also invalidated its orders regarding constitution of Special Court for the trial of former president and army chief General Pervez Musharraf (retd) in high treason case.
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 Tuesday, heard the appeals of ex-COAS against the Special Court’s judgment, and Bar Councils and others’ petitions against a three-member bench of the LHC verdict.
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 the injunctions of Islam, as well as, Article 2-A, 8 and 10-A of the Constitution.”
Additional Attorney General Aamir Rehman said the federation is not defending the LHC’s judgment, adding the federal government has prosecuted Musharraf.
Salman Safdar, representing the late former army chief, sought one week to get instruction from the family members of the late general.
The chief justice said they were not attending the merit of the case, but only examining the jurisdiction of the High Court assumed to set aside the Supreme Court’s orders.
Hamid Khan, appearing on behalf of ex-President LHCBA, said that before establishing the Special Court on 20-11-2013, the Supreme Court had passed two orders. He said the LHC entertained the petition in derogation of the apex court’s orders.
Justice Faez questioned whether the judgments of the Supreme Court are not binding upon the High Courts. Hamid Khan stated that the High Courts are bound to follow the apex court’s judgments. He then read Article 189 of the constitution which says; “any decision of the Supreme Court shall … be binding on all other courts in Pakistan.”
The chief justice said the LHC not only disregarded but also invalidated the Supreme Court’s orders. He inquired from the counsel if there was any precedent in the history in this regard. Hamid Khan replied; “It is unusual.”
Justice Athar Minallah questioned when the SC judgment in Mustafa Impex case was announced.
He then said how the LHC could rely upon that judgment as it is not retrospective. Justice Athar observed that the Special Court was established on 20-11-13, and when the Special Court had concluded its proceeding and convicted Musharraf; how could the LHC assume jurisdiction to take up an appeal against its judgment? Since the LHC could not assume this jurisdiction then the judgment of the Special Court is in the field, he added.
The chief justice said the glance of filing of writ petition before the LHC raises disturbing questions. It noted when the writ petition was filed, at that time the petitioner (Musharraf) was abroad.
How in the absence of Special Power of Attorney a writ petition was filed? How it was entertained, how it was fixed before a single judge of the LHC, which conducted the hearing. Advocate Salman Safdar sought one week to get instruction from the family of deceased Pervez Musharraf.
He said that he made more than 10 attempts to contact Musharraf’s heirs through a person.
He said that Sehba Musharraf, the wife of Pervez Musharraf, is living with his son Bilal Musharraf in Dubai, while Ayla Musharraf (daughter) is residing in Karachi. He committed to providing their telephonic contact numbers and addresses in order to serve them notices.
The chief justice told him that for us (the Court) you are former army chief’s counsel, as you had filed the appeal, adding the Court options are either to allow the appeal or dismiss it, but will never record in order that you are not pressing the appeal.
Earlier, Safdar informed the Court that the family members were anxious that the appeal be taken up as in the last four years it could not be fixed.
The family was disappointed that the appeal was taken up late. Safdar told General Pervez Musharraf (retd) was 76 years old when he had filed the appeal against the Special Court.
He requested that there should be a procedure that the petitions/ appeals be given priority.
The chief justice said that if he was serious then send this suggestion to the Pakistan Bar Council, Supreme Court Bar Association and to him, as well. It would be considered. The case was adjourned until today (Wednesday).
Copyright Business Recorder, 2023