The Federal Constitutional Court (FCC) on Wednesday wondered whether it could continue proceedings in the murder case of journalist Arshad Sharif, as the suo motu powers invoked by the Supreme Court while taking up the case had been curtailed after the 27th Amendment.
The question was raised by a two-judge FCC bench, headed by Justice Aamer Farooq and also including Justice Rozi Khan, as it took up the murder case.
Sharif was shot in the head when Kenyan police opened fire on his car on the outskirts of Nairobi on Oct 23, 2022. He had left Pakistan in August 2022 after multiple cases of sedition were registered against him in different cities.
The suo motu case for an independent and transparent probe of 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 constitutional bench of the SC. 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, Law Minister Azam Nazeer Tarar had explained that while the legislation granted the FCC suo motu powers, they could only be exercised when an application was submitted, and if the court deemed that the plea was valid and needed.
During the hearing today, the two-member FCC bench sought assistance on the jurisdictional question pertaining to suo motu from both sides of the divide at the upcoming hearing on December 17.
Justice Farooq emphasised that, along with regulating the court proceedings, jurisdictional questions should also be looked into, adding that the constitutional court could not function “without satisfying itself” on the matter.
For his part, Advocate Imran Shafique, who represents Sharif’s first wife Summaiya Arshad, argued that there was a court decision that the FCC could proceed with suo motu cases.
He contended that more than five thousand letters had been written to the SC after Sharif’s killing, and any one of them could be taken as a plea.
Progress report sought
The FCC also sought a progress report on the case’s murder investigations, with an observation that the report should contain what steps were taken legally, as well as suggestions for the probe in the future.
The bench said this matter would be further considered after winter vacations.
Justice Farooq also wondered what could be legally done to investigate and bring the culprits responsible for the murder to justice. The purpose of the proceedings should be achieved for which the suo motu was taken by the SC, the judge observed.
Moreover, Additional Attorney General (AAG) Chaudhry Aamer Rehman told the FCC that a legal assistant agreement had been reached with the Kenyan government and a request had been sent to it for a Special Joint Investigation Team’s (SJIT) visit to the crime scene.
AAG Rehman had informed the SC’s constitutional bench of the same in March this year.
Advocate Saad Umar Buttar, the lawyer of Sharif’s wife Javeria Siddique, also requested the court to allow the slain journalist’s family to see the SJIT investigation report.
At that, Justice Farooq observed that if the law allowed, the court was with them.
However, AAG argued that the documents could only be seen after the final challan was submitted to the court, also reminding that a fact-finding report on the murder case had become public earlier.
The 592-page fact-finding report, which was furnished before the SC and had become public, concluded that the murder was a “planned targeted assassination” that purportedly involved “transnational characters”.
The investigators had also contested the version put forth by the Kenyan police that Sharif’s killing was the “case of mistaken identity”.
During today’s hearing, when Justice Farooq inquired about the progress regarding the Kenyan government’s investigation, one of the lawyers representing the journalist’s family said the Kenyan High Court had “declared [Kenyan] police officers accused”, but the prosecution against the police in the murder case had not yet started in Kenya.
Rather, the Kenyan government had promoted the responsible police officers, the court was told.
Justice Farooq also observed that “undoubtedly, the grief of Sharif’s family cannot be expressed in words, and everyone wants those responsible for the murder to be brought to justice”, but the crime scene was outside Pakistan and the Pakistani government was bound by international laws.
AAG Rehman, too, emphasised that had the crime scene of the murder been in Pakistan, the case would have been solved by now.
He said 47 meetings of the SJIT had been held so far, and the investigation team had recorded the statements of 74 individuals.
Justice Farooq observed that it had been three years since the murder of the journalist, adding that if the proceedings had been carried out, perhaps there would have been no need to take suo motu notice.
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 replied that it had been three years and “nothing has happened in the investigation yet”. He said he “only wants the state of Pakistan to stand by me before the Kenyan judiciary”.
The lawyer further said that he had approached the Kenyan High Court in his personal capacity, and the government had not even exercised the option of legal assistance from the United Nations.
But, AAG Rehman argued that at this level, Pakistan could not go against a friendly country.
He said Kenya was a friendly country that always supported Pakistan in the UN, and therefore could not be offended.
He also confirmed that an FIR of the murder had been registered in Pakistan, in which three people, Khurram, Waqar and Saleh, had been named. But they were absconding, and Interpol had been contacted for their red warrant, he said.
After 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 telephonic conversation with Kenyan President William Ruto regarding Sharif’s murder case in 2022.
Correction: This story previously misidentified the respective counsels representing Arshad Sharif’s wives. The error has been corrected and is regretted.
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