DAWN - Cowasjee Corner; 04 January, 1998
The president in the shade
By Ardeshir Cowasjee
TWO weeks ago, I was wrong when I wrote: "During the three years he sat there, one sole judgment authored by the Honourable Justice Tarar was recorded in a PLD - his concurring judgment in the case of the 1993 dissolution of the National Assembly restoring Nawaz Sharif." Two judgments of his have been recorded, the second being Criminal Appeal No. 74/SAC/L, decided by Tarar on February 19, 1994, reported at 1994 SCMR 1466.
This was the case of "Muhammad Ashraf and Others versus The State," an appeal against the enforcement of the Hudood Ordinance and the conviction of the appellants by the Special Court for Speedy Trials No.II, Lahore. Muhammad Ashraf, Khalid Javaid and Zafar Ali had been sentenced to have their right hands amputated from the wrist and their left legs from the ankle, to seven years RI, and to a fine of Rs.20,000 each. Their crime was the theft of Rs.40,000 and of a licensed pistol from one Zahid Mahmood, and for "causing him simple and grievous injuries" in the process.
The learned honourable Chairman of the Supreme Appellate Court, Justice Muhammad Rafiq Tarar, headed the bench comprising members Justices Afrasiab Khan and Muhammad Zubair. The honourable Justice Tarar wrote the judgment. His concluding paragraph :
"Before convicting the appellants, the learned trial Court considered all the relevant provisions of law, including sections 10, 11, 16 read with sections 7 and 20 of the Offences Against Property (Enforcement of Hudood) Ordinance 1979 which cater for situations where Hadd shall not be imposed and/or enforced and on proved facts rightly concluded that the offence committed by the appellants squarely falls within the ambit of section 17(3) of the Ordinance. The only punishment provided by section 17(3) is the amputation of right hand from the wrist and left leg from the ankle which has been imposed by the learned trial Court and we confirm the same." To repeat, the year was 1994.
Another interesting case has come to light involving the honourable and learned Justice Tarar. On August 3, 1994, Justices Munir Khan and Mir Hazar Khan Khoso of the Supreme Court heard the matter of "Khalil-uz-Zaman versus Supreme Appellate Court Lahore," reported at PLD 1994 SC 885. This was an appeal against the judgment of that court dated March 14, 1993, passed in Criminal Appeal 91/SAC/L/92. The chairman, again, of that honourable Supreme Appellate Court was Justice Tarar, sitting with Judges Raja Afrasiab Khan and Abdul Majid Tiwana.
Justice Tarar wrote the judgment (not reported), opening up : "This appeal by Khalil-uz-Zaman convict is directed against the judgment of the learned Special Court for Speedy Trials-II Lahore, whereby he was convicted u/s 302 and 324 read with Section 337-F of the PPC. Under Section 302-PPC he was sentenced to death as Tazir and was directed to pay Rs.50,000 as compensation to the legal heirs of Mst Aasia Perveen deceased u/s 544-A of the Cr.P.C. and u/ss 324/337-F of the PPC he was sentenced to imprisonment for 10 years...." He finished off: "In the circumstances, the appellant is liable for Qatl-e-Amd u/s 302(a) of the PPC punishable with death as Qisas. In that view of the matter, the order directing payment of compensation is set aside. His conviction and sentence u/s 337-F is also set aside and with the above modification his appeal is dismissed."
Supreme Court Judges Munir Khan and Khoso heard the convict's appeal against Justice Tarar's judgment, and, inter alia, in their judgment have recorded :
"...we are in no manner of doubt that the trial Court and also the learned Appellate Court had no lawful authority / jurisdiction / power whatsoever to convict the petitioner under section 302 PPC or to impose penalty of death on him, and have acted in gross violation of law. The Courts derive authority to punish the accused from the statute. If the statute does not provide death penalty for the offence then obviously the Court would have no jurisdiction to award the same, and, as such, the conviction and sentence of the petitioner recorded under section 302 PPC is coram non judice.
"...If the impugned judgments are allowed to stand then the petitioner would be deprived of his life obviously in pursuance of orders which suffer from lack of jurisdiction and authority, gross carelessness, illegality and were violative of Fundamental Rights guaranteed by the Constitution. Fortunately for the petitioner, our Constitution gives protection to the citizens of Pakistan against illegal treatment in the matter of life, liberty and body.... In this case the Courts, vide impugned judgments, have ordered the petitioner to be hanged to death although he was/is not liable to death in law for the offence allegedly committed by him. There can be no case more fit and proper than the present one for interference in exercise of our original jurisdiction under Article 184(3) of the Constitution."
"....Had the Courts taken the trouble of reading three sections of the Pakistan Penal Code, i.e. section 306, 307 and 308, we are sure they would not have sentenced the accused/petitioner to death under section 302 PPC. The error committed by the Courts in convicting the accused/petitioner under section 302 PPC and sentencing him to death is so serious that had the petitioner eventually been hanged to death, we are afraid it would have amounted to murder through judicial process. Needless to say that plea of good faith/bona fide/ignorance of law/incompetency is/are not available in such like cases." The case was remitted back to the Lahore High Court for a "fresh decision in accordance with law." The year was also 1994.
Another much discussed case involving the good Justice Tarar dating back to circa. 1994 involved a 20-year old girl and a young man accused of adultery and of killing the girl's husband. On very flimsy evidence they were convicted by a sessions judge in the NWFP to be hanged to death. They appealed to the High Court but the sentence was upheld. They then appealed to the Supreme Court where they found Justice Tarar. He upheld the sentence and the 20-year old girl would have been hanged but for an ultimate presidential reprieve.
Three years later, whilst the Anti-Terrorism Act was being drafted, retired judges now Senators, Rafiq Tarar and Afzal Lone, were called in. They recommended what could be termed a parallel judicial system composed of special courts with special judges with special powers to try all those suspected of terrorist acts. Chief Justice of Pakistan Sajjad Ali Shah objected, and proposed that suspects be tried in the normal course by sessions judges (requesting that many more be appointed). To expedite matters, trials could be held in the jails. Those convicted could appeal to the High Court, and then to the Supreme Court. The CJ assured the prime minister that he would see that the entire trial period was completed within three months.
Nawaz Sharif did not want trials held in three stages, so it was finally agreed by all that the sessions court stage would go, that suspects would be tried in the High Court, and then allowed an appeal to the Supreme Court.
However, much to the CJ's surprise, when the Act was passed by parliament, the law laid down that a suspect would be tried by a special judge in a special court, that an appeal would lie only before a special tribunal of two specially appointed high court judges, that no bail would be granted, and no appeal to the Supreme Court allowed. All as initially recommended by Tarar/Lone.
Such is the recorded mindset of a judge (thank heavens, no longer a judge), a Senator, and now the president.
After he had been nominated on December 15 as the Muslim League presidential candidate, minister of thought control Mushahid Hussain declared Tarar to be a "moderate Muslim" On December 18, Acting Chief Election Commissioner Mukhtar Junejo rejected his nomination papers under Article 63(g) of the Constitution.
Rather than honourably withdrawing from the race, Rafiq Tarar appealed for help to the prime minister and to the law ministry. The law ministry confidently announced that Tarar's appeal would be placed before Justice Malik Qayyum of the Lahore High Court, brother of PML MNA Malik Parvez, that an interim stay would be given on the EC order, and the dates of subsequent hearings of the case would be so adjusted as to allow Tarar to successfully contest the election. This happened, and as things now stand, Tarar is president subject to the EC order being struck down by the High Court and then by the Supreme Court.
With all this behind their head of state, - the judgments and the new law - and with him and the prime minister on the march for "Reform", should we be a very frightened nation ? Wake Up.