Reversing judgment: Verdict reserved in Shafqat Hussain’s case

Petitioner argues that the single bench orders were ‘misinterpretation of facts’.

ISLAMABAD:

The Islamabad High Court on Wednesday reserved its verdict on a plea filed by murder convict Shafqat Hussain challenging the court’s single bench May 11 verdict, which declared that the petition calling for the formation of a judicial commission to determine Hussain’s age was not maintainable.

A divisional bench comprising Justice Noorul Haq Qureshi and Justice Shaukat Siddiqui reserved the verdict after Hussain’s counsel concluded his arguments on the maintainability of the case.

In his arguments, Tariq Hassan said that Justice Athar Minallah had dismissed his application against the inquiry conducted by the Federal Investigation Agency (FIA) on the orders of the interior ministry. He said that the inquiry should be conducted by a judicial forum and argued that the President of Pakistan can order an inquiry into it.

Justice Siddiqui remarked the counsel would not have challenged the inquiry had the report been in Hussain’s favour. Justice Qureshi further questioned if the facts of the case could be challenged in the mercy appeal.

In his intra-court appeal, Hassan said that the single bench order was based on “misinterpretation of facts and applicable law, arbitrary exercise of judicial power, and against the principles of natural justice”.

Among the grounds, Hassan maintained that the single bench had already held that FIA’s inquiry report was prima facie illegal. “However, the final order did not address the same, which is a material error on the face of the record,” he stated.

“The fact that respondents three and four (interior ministry and FIA) are not legally empowered or even otherwise competent to determine the age of the petitioner was never addressed in the impugned order,” he added.

Besides, the order revealed that Additional Attorney General Waqar Rana had submitted the ‘inquiry was initiated by the interior ministry to satisfy himself regarding the veracity of publication of an article in the foreign press.’

In addition, the order noted that Rana further submitted that the intent and purpose of the inquiry was not to determine the age of the appellant, rather it “was only to the extent of examining the veracity of some claims made by a civil society organisation,” he said.

Subsequently, Hassan has prayed the May 11 order be set aside.

In his May 11 order, Justice Minallah stated that nothing was placed before the court which indicated any miscarriage of justice or a need for a probe. “Conjectures, surmises, unsubstantiated assertions, assumptions without any cogent or material record, cannot vest jurisdiction in this court to exercise its powers under Article 199 of the Constitution,” the verdict stated.

The court had repeatedly directed the petitioner to present any precedent from where a case was reopened by a lower court after being decided by the country’s apex court as a case could not be opened once proceedings had reached finality.

‘The Independent’s article was  factually wrong’

Initially the issue was raised in an op-ed published in the foreign press, the judgment had revealed.

In its observations, the court had said that the article published in the British daily ‘The Independent’ by Clive Stafford Smith, director of the anti-death-penalty group Reprieve, was factually incorrect. The order stated that the perusals of the contents show that the author was not aware of the actual facts of the case.

“The contents are factually incorrect, not only in the light of the record, but are also unequivocally contradicted by the stance of the petitioner taken before this court,” it read.

During proceedings in the instant case, it has been noticed that, in their exuberance, some journalists and activists raised undeserved alarm without verifying the facts or examining the record, the verdict stated.

“Raising concerns without exercising care and before verifying the facts may in itself lead to miscarriage of justice,” it read, adding that it is expected that utmost care would be exercised, lest it may prejudice the inter

Published in The Express Tribune, May 21^st, 2015.