'Cold' Line Of Questioning: SC Asks Under What Law Blanket Amnesty From Arrest Granted To Elahi

Lawyers raise eyebrows over cold attitude of judges in the case even as judges say there are several legal questions in the matter that need answers

'Cold' Line Of Questioning: SC Asks Under What Law Blanket Amnesty From Arrest Granted To Elahi

The Pakistan Tehreek-e-Insaf (PTI), which had received prompt relief in the past, was shocked on Thursday when it saw the Supreme Court question the grant of blanket cover against arrests and questioned the maintainability of a plea filed by former Punjab chief minister and PTI President Pervaiz Elahi seeking his release from police custody. 

During the tenure of former Chief Justice Umar Ata Bandial, the PTI would often receive prompt relief on its pleas. Even on his last day as chief justice, Bandial had approved a petition filed by former prime minister and PTI Chairman Imran Khan against amendments to the NAB law, reversing amendments to the law passed by the Parliament.

But things seem to have changed after Chief Justice Qazi Faez Isa took oath as the new top jurist in the country. Benches to hear cases are being formed on the principle of 'case and not face'. Although a stay order remains in place on Practice and Procedure Act 2023, a legislation which requires the chief justice to share his discretionary power to form benches and take suo moto notices with two senior-most judges, CJP Isa is using his discretion to form benches and fix cases in consultation with the two senior-most judges, Justice Sardar Tariq Masood and Justice Ijazul Ahsan. 

Subsequently, on Thursday, a three-member bench headed by Justice Sardar Tariq Masood and comprising Justice Mansoor Ali Shah and Justice Musarrat Hilali took up an application filed by Elahi's wife seeking the release of her husband from police custody.

While hearing the case, the bench posed a legal question, asking under what law the high court passed a blanket order to not arrest a person who may be nominated in another case. 

In light of the blanket ban on arrest, the bench further asked how the Lahore High Court (LHC) could pass an order when the Islamabad Police have arrested Elahi.

The judges also expressed their displeasure at Elahi's counsel, former Punjab governor and lawyer Sardar Latif Khosa, for insisting that the order of the LHC barring Elahi's arrest must be implemented in a case lodged by the Islamabad Police.

When Khosa pointed towards harassment by the police every time Elahi acquired bail, the bench questioned the jurisdiction of the LHC's order over authorities in the Islamabad Capital Territory and pointed out that the arrests made were in separate cases.

During the hearing, Justice Masood questioned under which law an accused could not be arrested in a different case.

"Are the courts issuing a 'license to commit the crime'?" he asked.

"Who will be responsible if a blanket ban on arrest is given and he kills someone after release?" Justice Masood asked.
He further questioned the high court on granting bail to an accused in all pending cases through a single order.

Justice Mansoor Ali Shah asked how a case could proceed if it had become infructuous.

"Do not assume that we are pleased with what is happening, but these are legal questions which require legal answers," Justice Shah said as he asked Khosa not to become emotional. 

The top court adjourned further hearings for a week.

The cold and matter-of-fact manner in which these questions were raised during Thursday's hearing caused many an eyebrow to be raised amongst the pool of lawyers present.

Lawyers noted that the three judges on the bench have been consistent in their bold stance on civil liberties, fundamental rights, and respect for parliamentarians. They asked how come the top court has suddenly changed course and become a silent spectator when the political victimization of a political party and politician in the matter is amply visible.

They pointed towards the politicians, including Sheikh Rasheed, Pervaiz Elahi, among others, who are in jail in a clear-cut case of political victimisation.
However, another section of lawyers expressed their satisfaction with the way the court conducted proceedings in such cases. They noted that the reputation of the top court had undergone some scrutiny in recent years, with allegations of being less than transparent and fair; it was hoped that with a change in leadership, the top court would do all it could to shed that tarnished image and attempt to regain its dignity by delicately walking the tight rope of the law and the Constitution.

Some legal experts, however, suggested that the way Elahi's case goes, it could potentially define the top court's approach towards the PTI in all of its legal pursuits.

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain