ISLAMABAD: The Supreme Court has been requested to determine whether the Lahore High Court (LHC) could assume the role of an appellate court and set aside the Dec 17, 2019 verdict of the special court which awarded death penalty to former president retired Gen Pervez Musharraf in the high treason case.

In an appeal, senior counsel Hamid Khan, representing petitioner Advocate Taufiq Asif, requested the apex court on Monday to set aside the Jan 13 LHC verdict by declaring it illegal, unlawful and without lawful authority.

In its order, the high court had declared constitution of the special court a violation of the Criminal Law Amendment (Special Court) Act, 1976 and said the amendment to Article 6 of the Constitution, which deals with high treason under the 18th Amendment, could not be given retrospective effect to constitute an offence committed much earlier.

Moreover, the trial in absentia by the special court was also held to be illegal by the high court.

Apex court urged to determine whether a high court can act as an appellate court

In the appeal before the apex court, the petitioner argued that the high court through its order had virtually invalidated and rendered ineffective Article 6 of the Constitution, which has a special significance and importance in the constitutional history of Pakistan. The petition questioned the acceptance of Mr Musharraf’s petition by the high court when a similar matter was pending before the apex court, particularly when an effective order was already issued by the apex court on April 1, 2019.

Thus the entertainment of such a petition on the part of the high court violated the constitutional hierarchy of the courts under the Constitution.

It is established on the record, the petition argued, that Mr Musharraf had already been declared an absconder and, therefore, he had no right whatsoever under the law to seek stay of the trial against him before the special court. He even has no right to seek a stay against announcement of the verdict by the special court.

Therefore, the entire proceedings before the high court were contrary to the law and the Constitution, the petition said, adding that the high court could not sit over the April 1, 2019 verdict in which the SC, while deciding the case of the Lahore High Court Bar Association, had issued directives to the special court to proceed with the trial of Mr Musharraf. But the high court through its order had virtually set aside the apex court’s directives, the petition said.

Such intervention by the high court to interfere in the judgements of the SC will only lead to judicial chaos and anarchy in the country and such a situation is extremely undesirable for the constitutional dispensation in Pakistan.

Thus, the petition said, the high court had grossly violated and undermined the judicial structure and the judicial hierarchy provided in the Constitution.

The appeal also argued that the high court judgement allegedly seemed collusive since the counsel for the petitioner and the government were all arguing the case of Mr Musharraf. Moreover, the amicus curiae who assisted the court also entirely hand in glove with them. Therefore, no different point of view was presented before the high court since it was inherently unfair and unjust.

The appeal argued that the judgement by the high court was based on gross misreading of the provisions of the Constitution and the relevant laws on the subject, adding that the verdict smack of mala fide, conspiracy and planned attempt to sabotage, undermine and subvert the jurisprudence in Pakistan.

From the contents of the judgement, the appeal argued, it appeared that the consultation of the chief justice of Pakistan had been ridiculed.

Moreover, the question of trial in absentia should be seen in peculiar facts and circumstance of the present case on the basis of which directives were issued by the apex court, the appeal said, adding that Mr Musharraf deliberately absconded from Pakistan in 2016 and continued to abscond.

Published in Dawn, February 4th, 2020