Peshawar High Court Chief Justice Waqar Ahmad Seth, who breathed his last on Nov 12, has left a legacy of courage and steadfastness. His death has brought to an end his eventful career as a lawyer, judge and chief justice of the high court and has left his colleagues as well as legal fraternity in a state of shock.

Elevated to the bench as an additional judge on Aug 2, 2011, Justice Waqar Seth became the chief justice on June 28, 2018, and soon his name became synonymous with courage and bravery as he heard several high profile cases while facing pressure from powerful quarters.

As a judge he was known for upholding supremacy of the constitution, civil liberties and rule of law.

Supreme Court Bar Association’s President Abdul Lateef Afridi believes that it was Justice Seth’s courageous and uncompromising attitude that he was in tussle with powerful institutions and had also to pay a price as thrice he was not elevated to the Supreme Court despite being on merit.

“Judges like Justice Waqar Seth are born in centuries. His sudden death has created a deep void which can’t be filled for years to come,” said retired Justice Dost Mohammad Khan, a former Supreme Court judge as well as ex-PHC chief justice.

He said that through his judgments the deceased had enhanced the prestige of the judiciary.

Justice Waqar Seth had reached pinnacle of his career when for the first time in the history of the country, while heading a special court, he had convicted former military ruler retired General Pervez Musharraf and sentenced him to death for high treason under Article 6 of the Constitution.

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

The said judgment, delivered on Dec 17, 2019, had created ripples across the country. While all lawyers’ representative bodies hailed that verdict, the government ministers came out openly against it and the federal law minister, Farogh Naseem, even told a press conference that the federal government would file a reference against Justice Waqar Seth before the Supreme Judicial Council.

In Paragraph 66 of the judgment authored by the deceased judge directed the law enforcement agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan and hanged for three days.

Apart from the judgment in high treason case, there are several other important verdicts to his credit. On Oct 18, 2018, he was heading a bench which acquitted 75 convicts of military court, most of whom were awarded death sentences. Subsequently, on June 16, 2020, around 198 more convicts of military courts were acquitted by a bench headed by Justice Waqar Seth.

The said two judgments were challenged by the federal government before the Supreme Court, which had suspended those orders and now the government appeal awaits final adjudication.

Around 150 more petition of military court convicts are pending before the high court and before his death on different occasions Justice Seth had ordered the ministry of defence to submit record in those cases so that these petitions could be decided.

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 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 more than 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, finally malice of facts & law.”

Last year on Oct 17 a bench of Chief Justice Waqar Ahmad Seth and Justice Mussarat Hilali, had delivered another landmark judgment by declaring the controversial 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 prisons to take control of all the internment centres within next three days.

That verdict was also challenged by federal and KP government before the apex court, which suspended it after preliminary hearing and final judgment has now been awaited.

The same bench delivered another important judgment on Oct 30, 2018, 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 an advocate Ali Azim Afridi who had challenged the Fata Interim Governance Regulation (FIGR), 2018, on multiple grounds and had requested the court to declare the same as unconstitutional.

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 had upheld that verdict but had extended the time period of setting up regular courts in tribal districts to six months instead of one month given by the high court.

Published in Dawn, November 16th, 2020