SC issues detail order in Musharraf case

The Supreme Court (SC) declared on Tuesday the Lahore High Court's (LHC) judgment quashing the late former military ruler Gen (retd) Pervez Musharraf's treason trial as unconstitutional.

In a 16-page detailed order issued almost two months after announcing its verdict on the appeals, the apex court emphasised that the disregard of judgments and orders on this matter by the LHC constitutes 'judicial effrontery and impropriety.'

Justice Syed Mansoor Ali Shah during the hearing of superior bars' appeals against the LHC's decision declaring Musharraf's treason trial as unconstitutional, stated in the detailed judgment: "The failure to adhere to the judgments and orders of the Supreme Court undermines the credibility and effectiveness of the entire judicial system established by the Constitution. Judgments of this Court, being binding on all judicial and executive authorities of the country, are a constitutional obligation under Articles 189 and 190 of the Constitution. This obligation reflects a fundamental commitment to preserving the integrity and sanctity of the Supreme Court.

"Disregard of the above-mentioned judgments and orders by the Lahore High Court amounts to judicial effrontery and impropriety. 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."

A four-judge bench led by Chief Justice of Pakistan Qazi Faez Isa issued a short order on this matter on January 10.

Justice Shah, in the detailed judgment, set aside the LHC's decision on seven grounds, such as the territorial jurisdiction of the LHC, availability of an alternate adequate remedy, the decision by the high court on the merits of the case, the high court granted the relief not sought, the constitutionality of Section 9 of the Special Court Act, misapplying the Mustafa Impex case, and violation of the directions and judgments of the apex court.

The detailed judgment mentioned that the LHC acted in outright violation of the express directions and judgments of the apex court. "The matter of the trial of the respondent for the offense of high treason had come before this court a number of times and was dealt with in Moulvi Iqbal Haider, Abdul Hameed Dogar and LHC Bar Association, and the respondent was duly represented by counsel in all these cases.

"Despite the said authoritative judgments and orders of this court dealing specifically with the trial of the respondent by the special court, the high court, in derogation of the same, set aside the entire proceedings of the trial of the respondent through the impugned judgment. It ignored particularly the judgment of this court rendered in LHC Bar Association and declared Section 9 of the Special Court Act ultra vires in its entirety, which was not even prayed for by the respondent."

Read SC upholds Musharraf's death penalty in treason case

The judges of the special court, Justice Waqar Ahmed Seth, Justice Nazar Akbar, and Justice Shahid Karim announced the final judgment on Dec 17, 2019. They were appointed with the approval of the federal government, i.e. the federal cabinet. "Therefore, 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."

Justice Shah also highlighted that "judging is a cornerstone of the legal system, embodying the application of law to resolve disputes. Unlike monarchs who historically wield absolute power, a judge operates within a framework of laws and principles that guide decision-making".

"Moreover," the SC observed that "judges are not sovereigns with unfettered discretion but are guardians of the law, tasked with ensuring that justice is done according to established legal norms and principles. Their decisions must be guided by the law, precedents, and the facts before them, not by personal desires or objectives. A judge, in the pursuit of justice, cannot embark on a self-imposed crusade of right and wrong.

"He ‘is not to innovate at pleasure. He is not a knight errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by the system, and subordinated to the primordial necessity of order in the social life.

"Thus, this ensures that justice is administered fairly, consistently, and predictably, thereby upholding the rule of law."

SC annuls LHC’s 2020 decision

On January 10, a four-judge bench of the apex court, headed by Chief Justice Isa took up appeals related to the LHC’s January 13, 2020 order.

The LHC in its order declared the special court, which handed down the death sentence to Musharraf on December 17, 2019, as “unconstitutional”.

The SC issued separate orders on the matter of the appeal against the death penalty decision and the petition filed against the LHC declaring the special court ‘illegal’.

In one of the orders, the SC dismissed the appeal under Section 431 of the Criminal Code because of the lack of appearance of the legal heirs of Musharraf.

It declared that as a result of the termination of the appeal, the death sentence handed down by the special court in the high treason case would remain upheld.

The court observed that the former general’s legal heirs could not be contacted despite making efforts. “We have no option but to retain the death penalty,” the order read.

In the other matter, the court issued a short order annulling the LHC decision to declare the special court as unconstitutional.