ISLAMABAD: Chief Justice of Pakistan Qazi Faez Isa on Tuesday regretted precedents in the country’s judicial history where high courts knowingly disregarded or invalidated earlier Supreme Court’s judgements.

CJP Isa made the observation while heading a four-judge SC bench that had taken up a set of appeals against the Jan 13, 2020 Lahore High Court order of declaring unconstitutional the Dec 17, 2019 death sentence awarded to late military ruler Gen Pervez Musharraf by the Special Court in the high treason case.

Justice Syed Mansoor Ali Shah, Justice Amin-ud-Din Khan and Justice Athar Minallah are other members of the SC bench.

Gen Musharraf was one of the petitioners challenging the Special Court ruling.

Justice Minallah says Special Court’s death penalty order still in the field

During the hearing, CJP Isa referred to Article 189 of the Constitution and wondered whether the SC judgements are not binding on the high courts and expressed his surprise that the LHC through its 2020 judgement knowingly overlooked the earlier decisions of the apex court. The high court even went ahead by holding that the top court in its earlier judgements had disregarded certain propositions of the law.

Pointing towards senior counsel Hamid Khan, who was representing one of the petitioners, Taufiq Asif, the CJP observed that the record of the original filing of the petition before the LHC had raised disturbing questions.

The CJP asked the counsel to go through the entire high court rec­o­­rd which suggests that when the pe­­tition was filed, the court office had raised objections by stating that the plea was not maintainable. Besides, the petition was filed in the high court without the power of attorney on behalf of Gen Mush­arraf who was then residing in Dubai, but the affidavit stated that it was issued by the oath commissioner in the presence of the petitioner.

Moreover, the petition was taken up by a single-judge bench despite office objections in which Advocate Mohammad Azhar Siddiq appeared and then the case was proceeded before a full bench of the high court.

“We are concerned how the petition was filed and how it was entertained when the office had raised objections,” the CJP regretted, adding that mechanism of entertaining petitions was important in such matters.

Justice Minallah observed that the high court judgement will have no effect on the conviction awarded by the Special Court since only the apex court could decide such appeals.

Thus the Special Court judgement is still in the field and has not been set aside.

Justice Amin-ud-Din Khan recalled that the jurisdiction exercised by the Special Court had never been challenged before the high court, rather the main plea before the LHC was the trial of Musharraf in absentia.

Meanwhile, Advocate Salman Safdar, who had filed the appeal on behalf of Gen Musharraf, sought more time since he could not get fresh instructions from the legal heirs of the former president.

The bench asked him apprise the heirs that any decision by the Supreme Court would have implications since they may lose benefits if the conviction awarded to the petitioner was upheld.

Published in Dawn, November 22th, 2023