ISLAMABAD - Chief Justice Iftikhar Muhammad Chaudhry Thursday observed that Supreme Court could not sentence former President General (r) Pervez Musharraf however it could declare his November 3, 2007 acts as unconstitutional. Chief Justice observed this while responding to Advocate Hamid Khan who was representing the Sindh High Court Bar Association (SHCBA) seeking regularisation of two Sindh High Court (SHC) judges Rashid Kalwar and Zafar Sherwani Khan and prayed to the court to declare Musharraf as usurper, invalidate his November 3, 2007 acts and try him for high treason on account of rebellion against the Constitution. Chief Justice observed that the Supreme Court could not sentence anyone in the case in hand but could declare the November 3 acts as unconstitutional. Justice Mehmood Akhtar Shahid Siddiqui, member of the 14-member larger bench, observed that it was up to the Parliament and the nation to try the former president. Headed by the Chief Justice, the bench is hearing the SHCBAs petition clubbed with Advocate Akram Sheikhs petition against the PCO judges. The bench is also examining the November 3 acts of Pervez Musharraf and is likely to review the SC judgment in Tikka Iqbal Case, as the above-mentioned judges were denied confirmation on the basis of the said judgment. The same judgment had also validated the November 3 acts of former president. During the course of proceedings, the Chief Justice observed that former military ruler had taken at least 41 unconstitutional steps after the imposition of emergency. He said that the Parliament could easily undo Musharrafs ordinances, which were contrary to the Constitution. Justice Khalil-ur-Rehman Ramday asked the Attorney General Latif Khosa as to why the Parliament had not legislated over the ordinance issued by the former president during the last one and a half year. The Attorney General replied that the government was bound to the courts orders. Justice Jawwad S Khawaja observed that the court had not restricted the Parliament from performing its duties, to which Khosa said the government was bringing about constitutional package in which all the constitutional matters would be settled. Earlier, the court commenced the proceedings an hour earlier than the schedule. Hamid Khan in his arguments referred to a comment of Justice Yaqoob Ali Khan in Asma Jilani Case, which stated that judges who took oath under LFO or PCO would be considered as collaborators with the usurpers. He also referred to another comment of the same judge, saying that the court should invalidate acts of a usurper and try him for high treason. Moreover, he said, the circumstances, which led to the imposition of marshal laws in past were entirely different to the situation on November 3, 2007. Therefore, he contended, the Supreme Court judgments in Nusrat Bhutto and Zafar Ali Shah cases should not be extended to the Tikka Iqbal Case and prayed that all the actions taken by Gen (Retd) Pervez Musharraf on or after November 3, 2007 be declared as null and void and he (Musharraf) be declared usurper on the basis of principles laid down in Asma Jilani Case. Hamid Khan further prayed to the court to revisit its judgment in Tikka Iqbal Case, to which the Chief Justice asked him to describe the instruments under which the said case could be revisited. Khan contended that Supreme Court had revisited its judgments in past and cited in the State Vs Zubair and WAPDA Vs Muhammad Khalil cases. Justice Jawwad S Khawaja, however, observed that under Article 198 of the Constitution, other courts were bound to the decisions rendered by Supreme Court, not the Supreme Court itself. Hamid Khan, however, went on with his arguments and said that the November 3, 2007 acts were violation of the interim order of the 7-member bench of the Supreme Court. Moreover, he contended, the tribunal purported in Tikka Iqbal case was quorum non-judice (without jurisdiction), as, he said, there were no vacancies in the Supreme Court against which they were appointed. He submitted that the Supreme Court Judges Act 1997 provided for only 17 judges in the Supreme Court including the Chief Justice while Article 176 of the Constitution stated that the number of judges in the Supreme Court could be enhanced only through an act of the Parliament. He contended that the number of SC judges provided by the 1997 Act was intact, as the same Act was passed by both the houses of the Parliament and could only be amended so. Money Bill cant enhance the number of SC judges, he observed. Justice Khalil-ur-Rehman Ramday observed that Money Bill could provide for financial provision for the prospective number of judges but the number of judges of the Supreme Court could be enhanced only by amending the 1997 Act. Therefore, Hamid Khan continued, the notifications issued on November 3, 5, 12 (2007), December 9, 2007 and February 7, 2008, under which Justice Abdul Hameed Dogar was appointed as Chief Justice and 11 other judges were inducted in the Supreme Court were invalid. They were not even de facto judges, he contended. He submitted that if the Oath of Office (Judges) Order were declared null and void, then all these appointments would become invalid. The Chief Justice asked Hamid Khan as to what would be the status of the judgments rendered by the said judges when he (Hamid Khan) was not considering them even de facto judges. He replied that principle of condonation might be more applicable than the de facto doctrine in the case in hand. He contended that certain actions of Yehya Khan were protected in Asma Jilani Case on the basis of public interest even though he was declared usurper in the same case. Khan also termed the members of 7-member tribunal hearing Tikka Iqbal Case and the 13-member bench, which reviewed the same case as biased and beneficiary of the November 3 acts. Only one member of the 13-member tribunal was already a judge of the Supreme Court while all others were inducted from other courts, he said. Hamid Khan prayed to the court to nullify all the actions taken on November 3, 2007. He also prayed that all such acts be declared unconstitutional, the judges appointed in higher judiciary between November 3, 2007 up to March 24, 2009, be declared invalid and the Tikka Iqbal Case be revisited. Complying with the courts order, Secretary Interior Syed Kamal Shah submitted report regarding the incidents of terrorism occurred during November 3 to December 15, 2007. According to the report, a total 160 incidents of terrorism occurred during the said period in which 116 people including 45 security personnel lost their lives while 137 FIRs were registered. After the conclusion of Hamid Khans arguments, Advocate Akram Sheikh commenced his arguments in his petition against the PCO judges. He questioned the legal status of Justice Abdul Hameed Dogar as Chief Justice of Pakistan from November 3, 2007 to March 16, 2009 and asked whether a person who could not even be appointed as Acting Chief Justice during the said period was authorized to be consulted for the appointment of Supreme Court and high courts judges. He contended that under Articles 177 and 193 of the Constitution, even duly appointed Acting Chief Justice was not authorized to be consulted in the appointment of judges. Akram Sheikh prayed to the court to try Musharraf under Article 6 of the Constitution for violation of his oath of office as Chief of Army Staff and a tribunal be formed to determine what was according to the Constitution and what was not.