Shafqat Hussain petition: Court asks counsel to present precedent

IHC bench says no new evidence can be considered unless the case is reopened.

ISLAMABAD: The Islamabad High Court bench ordered Shafqat Hussain’s counsel to submit final arguments in connection with the maintainability of a petition calling for the formation of a judicial commission to determine his age.

The court on Wednesday directed the petitioner to present before the court any precedent example of a case from anywhere across the globe where a case ruled on by the country’s highest court was later reopened by a lower court.

Issue of maintainability persists in the case as the state counsel argued that as it is not a contempt case and respondents such as the president and prime minister have blanket immunity under Article 248 of the Constitution.

Explaining the issue over the inquiry conducted by the Federal Investigation Agency (FIA) on the orders of interior ministry to determine Hussain’s age, the state counsel said the minister was aware of the Supreme Court’s orders and the inquiry was not about establishing the convict’s juvenility, rather, “It was an inquiry into the certificate of age shown to the media. It was limited to the veracity of the certificate,” he maintained.

Justice Minallah then said, “What the federal government has done was not in accordance with the law…It was akin to reopening the case.”

At no point did the Supreme Court determine Hussain’s age, said his counsel, Dr Tariq Hassan.

Justice Minallah noted that the matter had not been brought to light in ages and was only taken up after the case was decided.

The petitioner said that all he was seeking was clemency through a presidential pardon as the inquiry FIA report was part of the clemency plea. He added that determination of age will help the president to decide on the clemency appeal. “But that is not the prayer in the petition,” the judge pointed out.

The state counsel later alleged that the petitioner and others were trying to indirectly achieve what was impossible directly.

Justice Minallah was of the view that documents need to be produced during the trial because it gives the complainant party a chance to cross-examine the accused, adding that documents have no importance unless the case is reopened.

On the issue of maintainability, the court also pondered whether the petition would be maintainable when the victim and his family were not party to the case and if the IHC could hear the case at all after the Supreme Court’s orders.

While giving a final chance to the petitioner to present arguments, the court adjourned till Friday.

Published in The Express Tribune, May 7^th, 2015.