ISLAMABAD: The Supreme Court on Wednesday poked holes in the Lahore High Court’s (LHC) decision to overturn the death sentence of former military ruler Pervez Musharraf, initially impo­sed by a special court in December 2019, observing that the LHC’s decision addressed issues beyond the scope of the initial petition.

Chief Justice of Pakistan (CJP) Qazi Faez Isa, leading a four-judge bench, expressed astonishment at the LHC’s approach, suggesting that it exceeded its jurisdiction.

“At best, the LHC could do was to allow the prayers sought in the petition, but what the court did was uprooting the special court itself,” Justice Isa said.

The case, stemming from high treason charges against Mr Mush­arraf, was initially adjudicated by a three-member special court, led by the late chief justice of Peshawar High Court, Waqar Seth, and included Justice Shahid Karim of the LHC and Justice Nazar Akbar of the Sindh High Court.

SC pokes holes in high court’s 2020 ruling, raises concerns over its jurisdiction

The Supreme Court’s scrutiny was directed at the LHC’s January 2020 order, which not only declared the special court’s ruling unconstitutional but also entertained Mr Musharraf’s appeal against his death conviction. Mr Musharraf died earlier this year following a prolonged illness.

CJP Isa wondered whether the high court enjoyed similar power to the Supreme Court, which could invoke Article 187 of the Constitu­tion to do complete justice.

Accused individuals had an adequate remedy in the shape of appeal against the special court order under Section 12(3) of the Criminal Law Amendment (Spec­ial Court) Act 1976, he observed, highlighting the hurdles regarding the territorial jurisdiction.

Even if the high court judgement was correct, it couldn’t stand on the jurisdiction issue, he observed, adding that the assumption of the jurisdiction by the high court was not only surprising but also perturbing.

Senior counsel Hamid Khan, representing petitioner Taufiq Asif, read out the conclusion of the LHC’s judgement, which had held the initiation and culmination of proceedings against Mr Musharraf as constitutionally flawed.

The LHC had also questioned the legality of certain procedural aspects, including the lack of approval for filing the complaint and the retrospective application of constitutional amendments.

In response, CJP Isa observed that the LHC’s decision addressed issues beyond the scope of the initial petition.

The Supreme Court’s review also brought into focus concerns regarding the LHC’s territorial jurisdiction, with Justice Syed Mansoor Ali Shah noting that the constitution of the special court was never directly challenged.

When Justice Athar Minallah wondered whether the federal government had ever raised the issue regarding the assumption of the jurisdiction by the high court, the CJP said it seemed as if the “same-page doctrine” was at play.

Additional Attorney General Chaudhry Aamir Rehman, however, recalled that the law secretary had objected to the assumption of jurisdiction by the LHC.

Justice Shah also questioned the impartiality of amicus curiae Barrister Ali Zafar, suggesting a potential bias in the proceedings.

During the hearing, CJP Isa also cautioned the counsel against labelling Mr Musharraf as an absconder, as it could prejudice the ongoing appeal. The hearing is set to continue next Tuesday.

Published in Dawn, November 23rd, 2023