The Federal Constitutional Court (FCC) on Wednesday wondered whether it could continue proceedings in the journalist Arshad Sharif murder case as the suo motu powers invoked by the Supreme Court in taking up the case had been curtailed after the 27th Amendment.
The issue was raised by a two-judge bench of the FCC, headed by Justice Aamer Farooq and also including Justice Rozi Khan, while dealing with the murder case.
Sharif was head shot when Kenyan police opened fire on his car on the outskirts of Nairobi on October 23, 2022. He had left Pakistan in August 2022 after multiple cases of sedition They were registered against him in different cities.
The suo motu case for an independent and transparent investigation into the murder was initially taken up by a five-member SC bench in December 2022. After the passage of the 26th Amendment, it was heard by a six-member SC constitutional bench. However, after its formation under the 27th Amendment, the FCC was granted jurisdiction over both constitutional and suo motu cases.
But during debate on the 27th Amendment bill in the Senate, Justice Minister Azam Nazeer Tarar explained that while the legislation gave the FCC suo motu powers, they could only be exercised when an application was made and if the court found the declaration to be valid and necessary.
During today’s hearing, the FCC’s two-member court sought relief on the jurisdictional question regarding suo motu from both sides of the divide at the upcoming hearing on December 17.
Justice Farooq stressed that apart from regulating judicial procedures, jurisdictional issues should also be examined, adding that the constitutional court cannot function “without being satisfied” in this regard.
For his part, lawyer Imran Shafique, who represents Sharif’s first wife, Summaiya Arshad, argued that there was a court ruling that the FCC could proceed with the cases suo motu.
He maintained that more than five thousand letters had been written to the SC after Sharif’s murder, and any of them could be taken as a plea of guilty.
Progress report requested
The FCC also requested a progress report on the case’s murder investigations, with the observation that the report should contain what steps were legally taken, as well as suggestions for future investigation.
The court said this matter would be further considered after the winter holidays.
Justice Farooq also wondered what could be done legally to investigate and bring to justice those responsible for the murder. The objective of the procedure for which the SC adopted the suo motu appeal must be achieved, the judge observed.
Additionally, Additional Attorney General (AAG) Chaudhry Aamer Rehman told the FCC that a legal aid agreement had been reached with the Kenyan government and a request for a Special Joint Investigation Team (SJIT) to visit the crime scene had been sent to it.
This was reported by Attorney General Rehman to the Constitutional Chamber of the Supreme Court in March this year.
Advocate Saad Umar Buttar, counsel for Sharif’s wife Javeria Siddique, also requested the court to allow the slain journalist’s family to see the SJIT investigation report.
At this, Justice Farooq observed that if the law permitted it, the court was with them.
However, AAG argued that the documents could only be seen after the final challan was submitted to the court, reminding that an investigation report into the murder case had been made public earlier.
The 592-page investigation report, which was submitted to the SC and made public, concluded that the murder was a “planned targeted killing” in which “transnational figures” allegedly participated.
Investigators had also questioned the version presented by the Kenyan police that Sharif’s murder was a “case of mistaken identity.”
During today’s hearing, when Judge Farooq asked about the progress of the Kenyan government’s investigation, one of the lawyers representing the journalist’s family said that the Kenyan High Court had “declared [Kenyan] accused police officers,” but the prosecution against the police in the murder case had not yet begun in Kenya.
Rather, the Kenyan government had promoted the police officers responsible, the court was told.
Justice Farooq also observed that “undoubtedly, the pain of Sharif’s family cannot be expressed in words, and they all want those responsible for the murder to be brought to justice,” but the crime scene was outside Pakistan and the Pakistani government was subject to international law.
AAG Rehman also stressed that if the crime scene had been in Pakistan, the case would have been solved by now.
He said that 47 SJIT meetings had been held so far and the investigation team had recorded the statements of 74 people.
Justice Farooq observed that three years had passed since the murder of the journalist and added that if the trial had taken place, there might not have been a need to take suo motu note.
The judge then asked who the accused were in this case and whether a first information report (FIR) had been registered in Pakistan.
One of the lawyers responded that three years had passed and “nothing has happened in the investigation yet.” He said he “just wants the State of Pakistan to support me before the Kenyan judiciary.”
The lawyer further said that he had approached the Kenya High Court in his personal capacity and that the government had not even exercised the option of receiving legal assistance from the United Nations.
But AAG Rehman argued that at this level Pakistan cannot go against a friendly country.
He said Kenya was a friendly country that always supported Pakistan in the UN and therefore could not take offence.
He also confirmed that an FIR of the murder had been registered in Pakistan, naming three people, Khurram, Waqar and Saleh. But they were absconding and Interpol had been contacted for their red warrant, he said.
Following the signing of the Mutual Legal Assistance (MLA) agreement with Kenya, the investigation team should visit the crime scene, the AAG said.
He also recalled that Prime Minister Shehbaz Sharif had a telephone conversation with Kenyan President William Ruto regarding the Sharif assassination case in 2022.
Correction: This story misidentified the respective lawyers representing Arshad Sharif’s wives. The bug has been fixed. and he regrets it.
