The conviction of former president retired General Pervez Musharraf by a special court for committing high treason has brought to national focus Peshawar High Court Chief Justice Waqar Ahmad Seth, who was heading the special court.

The judgment is termed historical by legal circles as for the first time a former military ruler was sentenced to death for abrogation of the Constitution of Pakistan.

The three-member special court was constituted by the federal government under the Criminal Law Amendment (Special Court) Act, 1976, for trying retired General Musharraf under the High Treason (Punishment) Act, 1973.

Since the judgment was delivered on Dec 17, the mainstream media had been focusing on the career of Justice Waqar Seth, who was appointed as additional judge of PHC on Aug 2, 2011, and subsequently appointed its chief justice on June 28, 2018.

Even prior to the recent judgment, he has to his credit several important verdicts, which developed his reputation among members of the bar as a judge deciding cases without any fear or favour.

One of his important judgments was acquittal of 75 convicts of military courts, most of whom were awarded death sentences.

On Oct 18, 2018, he was heading a bench whose other member was Justice Lal Jan Khattak. It had allowed scores of petitions mostly filed by relatives of those military courts’ convicts. The court had ruled that those convictions on account of different acts of terrorism were of no evidence and were based on malice in facts and law.

In its 173-page detailed judgment, the bench had ruled: “The way all the convicts have been proceeded right from their arrest from different parts of the country, in the custody of the agencies and landing them in the Internment Centres for months/years, are not appreciated at all for the purpose of convictions.”

The judgment was challenged by the federal government before the Supreme Court through CPLA (civil petition for leave to appeal). The apex court had suspended the judgment and now the government appeal awaits final adjudication.

The said judgment had also assumed international importance in the case of Indian spy Kulbhushan Sudhir Jadhav as the Government of Pakistan in an application filed by the Indian government before the International Court of Justice (ICJ) had cited it in support of its contention. The ICJ had delivered its judgment in July 2019.

It is mentioned in Para 130 of the ICJ’s judgment that Pakistan had referred to the decision rendered by the Peshawar High Court in 2018, which set aside over 70 convictions and sentences handed down by military courts in support of its contention that the domestic legal system provided for an established and defined process whereby the civil courts can undertake a substantive review of the decisions of military tribunals.

Para 142 states: “The Court takes note of the decision of the Peshawar High Court in 2018. The High Court held that it had the legal mandate positively to interfere with decisions of military courts if the case of the prosecution was based, firstly, on no evidence, secondly, insufficient evidence, thirdly, absence of jurisdiction, and finally malice of facts and law.”

Another prominent judgment was delivered on Oct 17 by a bench of Chief Justice Waqar Ahmad Seth and Justice Mussarat Hilali, which declared Action (in Aid of Civil Power) Ordinance, 2019, as well as identical regulations of 2011 as unconstitutional and ordered the Khyber Pakhtunkhwa government to declare all the internment centres as sub-jails within 24 hours.

The bench had ruled that the said ordinance violated all the fundamental rights enshrined in the Constitution of Pakistan.

By accepting two writ petitions filed by Advocate Shabir Hussain Gigyani, the court had declared five laws as unconstitutional, including the KP Continuation of Laws in erstwhile Pata Act, 2018, the KP Continuation of Laws in Erstwhile Fata Act, 2019, the two regulations of 2011 called Action (in Aid of Civil Power) regulation for Fata and Pata, and the KP Action (in Aid of Civil Power) Ordinance, 2019.

In its 28-page judgment, the bench directed the Inspector General of Prisons to take control of all the internment centres within next three days. That verdict was also challenged by the federal and KP governments before the apex court, which suspended it after preliminary hearing and final arguments have now been in progress.

The same bench delivered another important judgment on Oct 30 when it declared in conflict with the Constitution several provisions of the Fata Interim Governance Regulation, 2018, including assigning judicial powers to administrative officers in the merged tribal districts.

The bench had accepted a writ petition filed by advocate Ali Azim Afridi who had challenged the Fata Interim Governance Regulation (FIGR), 2018, and requested the court to declare the same as unconstitutional.

The bench had ruled that after enactment of the 25th Constitutional Amendment any judicial power exercised by the executive officers in the tribal districts was unconstitutional and against the principle of separation of judiciary from executive.

The bench had ruled that any decision of civil or criminal nature under that law would be void after a month of the said judgment. The Supreme Court upheld that verdict, but had extended the time period of setting up regular courts in tribal districts to six months.

Moreover, on Sept 11 Chief Justice Waqar Seth, while heading a two-member bench, directed the KP government to formulate rules within seven days for allocation of development schemes and not to release any development funds till that time.

The bench had disposed of a petition filed by over 30 opposition MPAs of KP Assembly, who had challenged unjust distribution of developmental funds by the KP chief minister in the fiscal budget 2018-19 specially the umbrella schemes reflected as “block allocation”.

Last year, a bench headed by Justice Seth had also ordered National Accountability Bureau to probe different aspects of the Bus Rapid Transit (BRT) project of the PTI-led provincial government. The order was stayed by the apex court.

Recently, the high court ordered the Federal Investigation Agency to probe 35 issues related to BRT project.

“As a lawyer, Chief Justice Waqar Seth was known for keeping low profile among his colleagues and was never active in lawyers’ politics,” said Shahnawaz Khan, an advocate of the Supreme Court. He added that before his elevation to the bench he was a known lawyer having expertise in services and labour matters.

Published in Dawn, December 23rd, 2019