SC’s detailed verdict in Musharraf’s treason case: LHC judgment unconstitutional: SC

ISLAMABAD: The Supreme Court on Tuesday held that the Lahore High Court (LHC) had no jurisdiction to hear the appeals against the Special Court constituted for conducting the trial of former military dictator General Pervez Musharaf (late) in a high treason case under Article 6 for abrogating the Constitution while imposing emergency rule in the country on November 3, 2007.

A four-member bench of the apex court headed by Chief Justice Qazi Faez Isa and comprising Justice Syed Mansoor Ali Shah, Justice Amin-ud-Din Khan and Justice Athar Minallah announced a detailed judgment in the appeal of former president Pervez Musharraf as well as identical appeals challenging the verdict of Lahore High Court, declaring the death sentence of former president under Article 6 as unconstitutional.

The bench on January 10, 2024, restored the death sentence of former president Pervez Musharraf awarded by a Special Court in a high treason case and set aside the judgment of the Lahore High Court that was declared unconstitutional.

The 16-page detailed judgment authored by Justice Syed Mansoor Ali Shah held that the impugned judgment passed by the Lahore High Court in sheer violation of the judgments and orders of this court is, therefore, not only without jurisdiction but also unconstitutional.

It is pertinent to mention here that on Jan 13, 2020, a three-member bench of the Lahore High Court (LHC) comprising Justice Syed Mazahar Ali Akbar Naqvi, Justice Chaudhry Muhammad Masood Jehangir and Justice Muhammad Ameer Bhatti declared the verdict, given by the special court formed to hear the high treason case under Article 6, “unconstitutional”. The Lahore High Court had held that the very basis of initiation of proceedings against the petitioner/General (retd) Pervez Musharraf, since its inception to the culmination beyond the constitutional mandate, ultra vires, coram-non-judice, unlawful, hence, any superstructure raised over it shall fall to ground.

On December 17, 2019, a special court awarded death sentence to the former ruler under Article 6 of the Constitution after a case of high treason was filed against him during Pakistan Muslim League-Nawaz’s (PMLN) tenure for his “unconstitutional” decision to impose an emergency in November 2007.

The detailed judgment noted that the primary contention of the learned counsel for the petitioners and the learned AAG is that the Lahore High Court lacked territorial jurisdiction to entertain the writ petition of the respondent filed against the acts done and proceedings taken by the Special Court at Islamabad. “This contention, we find, is well-founded,” the detailed verdict held adding that any act done or proceeding taken by the Special Court at Islamabad could only be challenged, as per Article 199(1)(a)(ii), before the High Court within whose territorial jurisdiction such act was done or proceeding taken, that is, the Islamabad High Court.

The court noted that the Lahore High Court assumed territorial jurisdiction in the matter, stating the reason that since the respondent also challenged along with the acts and proceedings of the Special Court, the Federal Government’s acts, i.e., the acts of filing the complaint and constituting the Special Court, it had the jurisdiction to adjudicate upon the matter. “The reason is flawed and is also against the law declared by this Court in Sandalbar11 and Amin Textile12 as well as by the Lahore High Court in Sethi and Sethi”, the detailed verdict ruled adding that the the ratio of these cases is that it is the dominant object of the petition, i.e., the main grievance agitated and the ultimate relief sought in the petition, which determines the territorial jurisdiction of the High Courts. “If the ultimate relief sought relates to an act done or proceeding taken within the territorial jurisdiction of a particular High Court, no other High Court in the country can assume and exercise writ jurisdiction on the pretext that one of the reliefs sought relates to an act of a federal body,” the verdict held.

The detailed verdict noted that the Lahore High Court observed in the impugned judgment that the PCO was issued by the respondent as Chief of Army Staff, General Headquarters, Rawalpindi, therefore, it had territorial jurisdiction to entertain the writ petition at Lahore. The detailed verdict held that the grievances agitated in the writ petition and the reliefs sought therein had no connection with the legality of PCO. “It appears that the High Court either contrived or misunderstood the subject matter of the writ petition by considering it to be related to the legality of the PCO,” the court ruled adding that in any event, this court had already held, in Sindh High Court Bar Association, 15 the PCO to be unconstitutional therefore, the assumption of jurisdiction by the Lahore High Court on this ground was unabashedly misplaced.

The court further held that though the federal government was deemed to function all over Pakistan, the actions of the federal government in constituting the Special Court and filing a complaint for high treason against the respondent in Islamabad, and the trial being conducted by the Special Court in Islamabad, can in no manner be said to have affected the respondent within the territorial jurisdiction of Lahore High Court. The court further ruled that the writ jurisdiction of the High Court cannot be exploited while having an alternate equally efficacious and adequate remedy provided under the law; such remedy cannot be bypassed to attract the writ jurisdiction.

The detailed verdict further ruled that not only did the High Court assume jurisdiction not vested in it but it also dilated upon the merits of the matter, which it could not do as the High Court was not the appellate forum adding that the High Court unlawfully assumed the appellate jurisdiction exclusively vested in the Supreme Court under Section 12(3) of the Special Court Act. The verdict noted that the High Court had also granted relief which was not even sought in the writ petition adding that the relief sought in the prayer clause of the writ petition, mainly challenged the order of the Special Court, dated 19.11.2019, whereby it had reserved its judgment.

The detailed verdict ruled that the High Court not only assumed the exclusive jurisdiction of the Special Court which was to determine whether the respondent had committed the offence of high treason but also usurped the appellate jurisdiction of the Supreme Court. “The High Court should have remained within the confines of the dispute brought before it and decided the same in accordance with the law and the Constitution,” the verdict held.

The court further noted that it was observed in the impugned judgment that the Secretary Interior, in his capacity as the officer authorised by the federal government, vide SRO 1234(I)/94 dated 29.12.1994 under Section 3 of the High Treason Act, can only file a complaint for high treason on the recommendations of the Federal Government, and under Section 3 of the Special Court Act it is the Federal Government that constitutes the Special Court.

The court noted that the whole exercise was then set aside by declaring it as illegal, unconstitutional and void ab initio on the ground that the said actions were taken by the prime minister, not by the federal government, and therefore, were not conducted in accordance with the principle laid down in Mustafa Impex. “The High Court, however, did not consider the decision of this Court rendered in PMDC, 25 which had held that the principle settled in Mustafa Impex did not have retrospective application, and applies only from the date of its pronouncement, i.e., 18.06.2016,” says the judgment

“The Special Court was constituted vide notification dated 20.11.2013 and the complaint was filed on 12.12.2013. Both these actions were taken before Mustafa Impex; therefore, the law declared therein did not apply to them,” the verdict ruled adding that any reconstitution of the Special Court before Mustafa Impex could also not be challenged for the same reason. As to the reconstitution of the Special Court after Mustafa Impex, the court noted that the relevant summaries moved, approvals granted and notifications issued have been placed on the record by the learned AAG.

On perusing the same, the court noted that the process of reconstituting the Special Court was, in fact, in compliance with the law declared in Mustafa Impex. “Particularly, we have noted that the judges of the Special Court, who announced the final judgment on 17.12.2019, namely, Justices Waqar Ahmed Seth, 26 Nazar Akbar 27 and Shahid Karim, 28 were appointed with the approval of federal government, i.e., the federal cabinet. Therefore, the detailed verdict held that the High Court could not have set aside the acts of filing the complaint and the constitution or reconstitution of the Special Court on the ground that Mustafa Impex was not complied with.”