TAUFIQ ASIF vs General (Retd — 2024 PLD 610 SUPREME-COURT

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TAUFIQ ASIF VS General (Retd.) PERVEZ MUSHARRAF S. 2---Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 12(3)---Constitution of Pakistan, Arts. 6 & 199---Trial for high treason---Judgment of Special Court---Lahore High Court in its writ jurisdiction set aside the entire proceedings of the trial conducted by the Special Court---Legality---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---High Court, without enjoying any jurisdiction whatsoever, gave its own findings on the core subject matter of the trial, i.e., whether the respondent (former Chief of Army Staff) had committed the offence of high treason under Article 6 of the Constitution read with Section 2 of the High Treason (Punishment) Act, 1973---By doing this the High Court unlawfully assumed the appellate jurisdiction exclusively vested in the Supreme Court under Section 12(3) of the Criminal Law Amendment (Special Court) Act, 1976---High Court had also granted relief which was not even sought in the writ petition---Relief sought in the prayer clause of the writ petition mainly challenged the order of the Special Court, whereby it had reserved its judgment---No prayer was made to seek a determination as to whether the respondent had committed the offence of high treason---However, the High Court overstretched its jurisdiction by proceeding to determine the core question of whether the respondent had committed the offence of high treason, and then held that the actions of the respondent were not part of Article 6 at the time of the commission of the said actions---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----Matter of the trial of the respondent for the offence of high treason had come before the Supreme Court a number of times and despite authoritative judgments and orders of the Supreme 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---Disregard of the judgments of the Supreme Court amounted to judicial effrontery and impropriety---Impugned judgment passed by the High Court in sheer violation of the judgments and orders of the Supreme Court was, therefore, not only without jurisdiction but also unconstitutional---Petitions were converted into appeals and allowed, and impugned judgment of the High Court was set-aside. Citation Name: 2024 PLD 610 SUPREME-COURTBookmark this Case TAUFIQ ASIF VS General (Retd.) PERVEZ MUSHARRAF S. 3---Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 3---Trial for high treason---Judgment of Special Court---Lahore High Court in its writ jurisdiction set aside the entire proceedings of the trial conducted by the Special Court and observed that the Secretary Interior, in his capacity as the officer authorized by the Federal Government vide SRO 1234(I)/94 dated 29.12.1994 under Section 3 of the High Treason (Punishment) Act, 1973 ('High Treason Act'), can only file a complaint for high treason on the recommendations of the Federal Government, and under Section 3 of the Criminal Law Amendment (Special Court) Act, 1976 ('Special Court Act') it is the Federal Government that constitutes the Special Court; that the whole exercise was illegal, unconstitutional and void ab initio as 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 the judgment reported as Mustafa Impex v. Government of Pakistan PLD 2016 SC 808 ("Mustafa Impex")---Held, that High Court, did not consider the decision of the Supreme Court rendered in the case reported as PMDC v. Muhammad Fahad Malik, 2018 SCMR 1956 ("PMDC"), 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---In the present case 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---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 relevant summaries moved, approvals granted and notifications issued showed that the process of reconstituting the Special Court was, in fact, in compliance with the law declared in Mustafa Impex---Particularly, the three Judges of the Special Court, who announced the final judgment on 17.12.2019, 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---Petitions were converted into appeals and allowed, and impugned judgment of the High Court was set-aside. Citation Name: 2024 PLD 610 SUPREME-COURTBookmark this Case TAUFIQ ASIF VS General (Retd.) PERVEZ MUSHARRAF Ss. 2 &3---Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 4---Constitution of Pakistan, Arts. 6 & 199---Trial for high treason---Judgment of Special Court---Territorial jurisdiction of Lahore High Court---Scope---Special Court convicted the respondent (former Chief of Army Staff) and sentenced him to death---However, the High Court ignored the judgment of the Special Court and decided the writ petition filed before it by allowing it through the impugned judgment ("impugned judgment")---High Court, amongst other reliefs granted therein, held that the very basis of initiation of proceedings against the respondent for the offence of high treason was beyond the constitutional mandate, ultra vires, coram non judice and unlawful---Legality---In the present case, the main grievance agitated and the ultimate relief sought by the respondent in his writ petition were about the acts done and the proceedings taken by the Special Court at Islamabad---Over such acts and proceedings, only the Islamabad High Court enjoyed territorial jurisdiction, and only the Islamabad High Court could judicially review the legality thereof under Article 199(1)(a)(ii) of the Constitution---Lahore High Court had no such jurisdiction; it wrongly assumed and exercised the jurisdiction that was not vested in it by the Constitution. Citation Name: 2024 PLD 610 SUPREME-COURTBookmark this Case TAUFIQ ASIF VS General (Retd.) PERVEZ MUSHARRAF art. 199---Civil Procedure Code (V of 1908), O. II, R. 2---Territorial jurisdiction of a High Court---Scope---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---Splitting of claims and reliefs in several actions (suits or petitions) regarding one cause of action is also not legally permissible under Order II, Rule 2, C.P.C.---No person can, therefore, seek relief regarding an act of a federal body from one High Court and relief regarding an act done in furtherance of or pursuance to that act from another High Court---Both reliefs must be sought in one petition and adjudicated by the High Court which has territorial jurisdiction over both acts. Citation Name: 2024 PLD 610 SUPREME-COURTBookmark this Case TAUFIQ ASIF VS General (Retd.) PERVEZ MUSHARRAF S. 9---High Treason (Punishment) Act (LXVIII of 1973), S. 2---Constitution of Pakistan, Arts. 6 & 199(1)(a), (c)---Trial for high treason---Judgment of Special Court---Lahore High Court in its writ jurisdiction set aside the entire proceedings of the trial conducted by the Special Court and also declared the entire Section 9 of the Criminal Law Amendment (Special Court) Act, 1976 ('Special Court Act') as ultra vires the Constitution---Legality---Plain reading of Section 9 shows that it deals with the absence of the accused person not only due to his illness but also where the absence of the accused person or his counsel has been brought about by the accused person himself, or where the behaviour of the accused person prior to such absence has been such as to impede the course of justice---In such cases, the Special Court is mandated to proceed with the trial after taking the necessary steps to appoint an advocate to defend such an accused person---Respondent/convict (former Chief of Army Staff) was neither "aggrieved", as required by Article 199(1)(a) or (c) of the Constitution, nor had assailed the entire provision of Section 9---However, the High Court proceeded to declare the entire provision as ultra vires the Constitution without providing any reasoning except that trial in absentia cannot take place---Petitions were converted into appeals and allowed, and impugned judgment of the High Court was set-aside. Citation Name: 2024 PLD 610 SUPREME-COURTBookmark this Case TAUFIQ ASIF VS General (Retd.) PERVEZ MUSHARRAF S. 2---Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 12(3)---Constitution of Pakistan, Arts. 6 & 199---Trial for high treason---Judgment of Special Court---Writ petition filed before the Lahore High Court to set aside the entire proceedings of the trial conducted by the Special Court---Maintainability---Availability of an alternate adequate remedy---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---Doctrine of exhaustion of remedies accentuates that a litigant must not circumvent or bypass the provisions of the relevant law that provide for an adequate remedy---If a party does not choose the remedy available under the law, the writ jurisdiction of the High Court cannot be invoked and exercised in his favour---Where a matter arises under a statute and is adjudicated by a forum provided therein, and the said statute also provides a remedy of appeal or revision either in the High Court itself or directly before the Supreme Court, the High Court should not in its writ jurisdiction interfere with such matter---In the present case the remedy of appeal provided before the Supreme Court by Section 12(3) of the Criminal Law Amendment (Special Court) Act, 1976 against the judgment of the Special Court was an alternate, adequate and efficacious remedy---In view of the availability of an adequate remedy of appeal before the Supreme Court, the High Court could not have exercised its writ jurisdiction under Article 199 of the Constitution, arrogating to itself the appellate jurisdiction vested in the Supreme Court under Section 12(3) of the Criminal Law Amendment (Special Court) Act, 1976---Petitions were converted into appeals and allowed, and impugned judgment of the High Court was set-aside.

TAUFIQ ASIF vs General (Retd — 2024 PLD 610 SUPREME-COURT

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