ISLAMABAD: The Pakistan Bar Council (PBC) filed a petition in the Supreme Court on Thursday challenging the Jan 13 Lahore High Court (LHC) verdict which declared as unconstitutional the award of capital punishment to former president retired General Pervez Musharraf by a special court. The petition prayed to the apex court to set aside the high court judgement.

The petition was filed on behalf of PBC vice chairman Abid Saqi and supported by Supreme Court Bar Association (SCBA) president Syed Qalb-e-Hassan, chairman of the council’s executive committee Sher Muhammad Khan, and members Akhtar Hussain, Syed Amjad Shah, Azam Nazeer Tarar and Kamran Murtaza.

The Sindh High Court Bar Association had also challenged the decision with a request to the apex court to restore the Dec 17 conviction of Pervez Musharraf by the special court for subverting the Constitu­tion. That petition, filed by Rasheed Razvi, had argued that the High Court verdict suffered from “illegality, mis-appreciation of facts and non-appreciation of law”.

The special court had declared the former president guilty of treason under Article 6 of the Constitution for clamping a state of emergency on Nov 3, 2007, and liable to be punished with death.

PBC’s petition questions whether high court enjoys territorial jurisdiction to entertain ex-president’s plea

The petition filed by the Pakistan Bar Council on Thursday questioned whether the Lahore High Court enjoyed territorial jurisdiction to entertain a constitutional petition filed by Pervez Musharraf against an order passed by the special court — a court beyond the LHC’s territorial jurisdiction.

The LHC should have stayed proceedings on the petition as the Islamabad High Court was already seized with a similar one, the PBC argued.

The Bar Council’s petition raised a question whether the high court could issue a writ of certiorari against an order passed by a special court that is not under its supervision.

The petition contended that a high court working under Article 199 (1) of the Constitution had no authority to declare a judgement given by the special court as of no legal effect as it had no supervisory control over that court.

The petition wondered whether the special court, established under the Criminal Laws Amendment (Special Court) Act 1976, was a person performing functions in connection with the affairs of the federation, a province or a local authority.

The PBC petition also asked whether a high court has jurisdiction to entertain a constitutional petition, especially before conclusion of a trial, and whether the court can assume jurisdiction against an order which was appealable before the Supreme Court only.

The petition described the Jan 13 LHC order as contrary to the principles of res-judicata and asked whether the Lahore High Court erred in law by entertaining the constitutional petition filed by Pervez Musharraf, especially when it was an established principle of law that the jurisdiction of the high court under Article 199 was a discretionary relief and can only be granted to a person who approaches the court with clean hands.

But in the present case, the petitioner before the high court (Musharraf) was an absconder who had been evading the law for a number of years, the PBC petition observed.

Has not the high court erred in law by granting relief to retired Gen Musharraf when the Supreme Court had already held in a different case that the former president was not entitled to rights available to a citizen as he was an absconder, the petition said.

Whether or not the high court ignored the law that a petition under Article 199 must not be entertained when an alternative remedy is available under the law, the PBC petition raised a question.

Published in Dawn, March 6th, 2020