Islamabad: The Peshawar High Court (PHC) Chief Justice Waqar Ahmad Seth has filed a petition in the Supreme Court of Pakistan seeking elevation to the apex court. He drew the court’s attention to the fact that he was the senior most judge in all the four high courts and had the lawful right to be considered for elevation as a judge of the Supreme Court.
Justice Seth has asked the Supreme Court to consider him for appointment against the vacancy made available after the recent retirement of Justice Faisal Arab on Nov 4.
Justice Seth had earlier filed a similar petition when Justice Ijaz Afzal Khan of the Supreme Court retired in May 2018. Justice Ijaz Afzal Khan belonged to Khyber Pakhtunkhwa (KP).
In a three-page application, the judge has stated that it is a convention of this [Supreme] court that an appointment to the court is made against a vacancy belonging to a particular province. However, an appointment was made from Karachi against the vacancy, and that too of a much junior judge, the application argued.
No recommendation for new judge until case decided
In his petition, Justice Seth has argued that it is imperative in the interest of justice and to avoid prejudice to the petitioner’s seniority that this time no recommendation be made by Chief Justice of Pakistan Gulzar Ahmed, who is also Chairman of the Judicial Commission of Pakistan (JCP), against the vacancy until his petition was decided by the SC.
The petition alleged that three respondent judges, until their elevation as judges of the SC, were junior judges of the high court who were discharging their functions under the chief justices of the high court.
Thus the chief justice of a high court, if elevated to the Supreme Court today, will be junior to these respondent judges, an anomaly which was not curable under the Constitution.
Government uncomfortable with Seth for his Musharraf judgment
According to sources, the main reason behind shelving Justice Seth’s elevation case is his December 2019 judgment in Gen (R) Pervez Musharraf’s treason case. He was one of the three-judge Special Court that awarded death penalty to Gen Musharraf for imposing emergency in the country on Nov 3, 2007 and forcibly confining over 60 judges to their residences.
In the special court’s judgment, Justice Seth had authored a paragraph ordering the law enforcement agencies to hang Gen Musharraf in front of the Parliament and if found dead, drag his corpse to D-Chowk (in front of the parliament) and leave his body there hanging for three days.
Justice Waqar Seth’s paragraph was later criticised by the federal government and Law Minister Farogh Nasim had publicly announced the government would challenge it.
Later, a Lahore High Court bench comprising Justice Syed Mazahar Ali Akbar Naqvi, Justice Muhammad Ameer Bhatti and Justice Chaudhry Masood Jahangir, set aside the conviction of Musharraf.
The LHC bench also ruled that the amended Article 6 of the Constitution, under which Musharraf had been found guilty, could not be applied in the case ‘ex post facto’ (retrospectively).
