FCC disposes of Arshad Sharif murder suo motu case

ISLAMABAD:

The Federal Constitutional Court (FCC) on Tuesday disposed of the murder case of senior journalist Arshad Sharif, explaining that the Pakistani and Kenya governments were already looking into the matter and there was no need for the court’s involvement.

Sharif had gone into self-imposed exile in August 2022 following a spate of cases against him in Pakistan. He moved to Kenya, where he was shot dead by the Kenyan police in October 2022 in an apparent case of mistaken identity.

The high-profile case, once handled by the Supreme Court (SC) under its suo motu jurisdiction, migrated to the FCC after the 27th Constitutional Amendment reshaped the judicial landscape, transferring authority over constitutional and suo motu matters to the newly minted court. A two-member bench comprising Justices Aamir Farooq and Rozi Khan Barrech conducted the proceedings.

An order issued today, authored by Justice Farooq, noted that Pakistan and Kenya had signed a mutual legal assistance agreement (MLA) and were coordinating at the diplomatic level to implement it.

“We are of the view that the authorities of both countries are taking appropriate action under their respective laws. Therefore, there is no need for any judicial interference in this regard when the law and investigation is taking its due course.

“In light of the aforementioned discussion, the instant suo moto action is disposed of. Accordingly, all pending applications are also disposed of,” the order said.

It said it acknowledged and shared the “grief felt by our nation and the journalist community over the death”.It further noted that “in case the legal heirs of Mr Sharif have any specific grievance in the matter they can approach the court(s) of competent jurisdiction.”

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The court noted that it had been informed an MLA agreement had been signed between Pakistan and Kenya to enable cooperation between law-enforcement authorities, including evidence collection, visits to the crime scene and questioning of individuals linked to the case.

However, it said the additional attorney general told the court that Pakistan had made a formal request to visit Kenya and was still awaiting a response from Kenyan authorities.

The court also recorded that Prime Minister Shehbaz Sharif wrote to Kenya’s president on February 20, 2023, seeking cooperation to ensure the investigation into Sharif’s killing was conducted smoothly and transparently.

It said the Foreign Office had played a key role in liaising with Kenyan officials, including facilitating contact between the two countries’ leadership and summoning Kenya’s high commissioner to emphasise the need for cooperation.

The judgment said Pakistan’s high commissioner in Kenya met the Kenyan public prosecutor on January 24, 2023, and facilitated meetings between the Special Joint Investigation Team (SJIT), the director of public prosecutions and the Independent Policing Oversight Authority.

It added that the minister of state for foreign affairs had also contacted Kenya’s cabinet secretary for foreign affairs, underscoring the importance of the case and seeking facilitation from Kenyan authorities.

The court said the federal government had taken several steps, including signing the MLA, forming the SJIT, holding diplomatic engagements through the foreign ministry, and issuing black warrants. It also noted that Sharif’s family was pursuing separate legal remedies in Kenya, which remain pending before Kenya’s SC.

The order added that keeping the suo motu case pending to oversee the probe would amount to supervising “every aspect of the investigation”, which it described as inconsistent with the SC’s role and past precedent.

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Citing Malik Shoukat Ali Dogar v. Ghulam Qasim Khakwani (PLD 1994 SC 281), the court noted that “the continued control over the investigation exercised by the Court [is] prejudicial to the accused and detrimental to the fairness of the procedure”.

The bench also addressed a request that the federal government take the matter to international forums. Referring to Article 40 of the Constitution, it said foreign relations fall within the domain of the foreign ministry and the federal government, and that judicial directions in this area would risk encroaching on foreign policy and interfering with an investigation already proceeding under MLA framework.

The court recalled a February 13, 2023 SC order that accepted the government’s position that MLA steps were under way and diplomatic channels were being pursued, and that approaching international forums was not the appropriate course at that stage. It said such an option could be considered later if needed, but for now it would “leave this issue to the good sense of the Federal Government”.

The judgement also noted that Kenya has its own legal mechanism — the Mutual Legal Assistance Act, 2011 — under which the Office of the Attorney General of Kenya acts as the central authority to process requests from foreign states.

It said both Pakistan and Kenya have established legal frameworks and that state-level investigations were under way, adding that two sovereign nations were handling the matter under their respective laws.

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‘Promises buried today’

Reacting to the verdict, Sharif’s widow, Javeria Siddique, said she was “disappointed” by the order.

“The injustice and grief of Arshad’s killing has broken me. The government’s inaction and silence is deafening.”

“You closed the case, but the name will remain immortal forever. Justice was not served in the case of martyr Arshad Sharif,” said Khyber-Pakhtunkhwa Chief Minister Sohail Afridi.

“Big promises of justice had been made to Arshad Sharif’s mother. All those promises have been buried today,” said senior journalist Hamid Mir.

Case timeline

Sharif — who had fled Pakistan after being charged with sedition — was shot dead in Nairobi, Kenya, in October 2022. The 49-year-old left the country in August 2022 to avoid arrest after multiple cases were registered against him, including sedition charges linked to an interview with PTI leader Shahbaz Gill, during which Gill made controversial comments.

Kenyan police said in a statement that Sharif was shot dead in a case of “mistaken identity” while he was travelling to Nairobi from Magadi. A subsequent police statement expressed “regrets on the unfortunate incident” and said the case was being investigated.

Two days after the killing, the interior ministry formed a two-member team — comprising officials from the FIA and the IB — to probe the murder.

In November 2022, the two-member Pakistani investigation team travelled to the United Arab Emirates to determine the facts surrounding Sharif’s killing.

In December 2022, the fact-finding team concluded that Sharif’s death was a planned and targeted assassination carried out by transnational actors, and not a case of mistaken identity, as Kenyan police had claimed earlier.

According to the team’s report, the “transnational roles” of individuals in Kenya, Dubai, and Pakistan could not be ruled out. “The four GSU (General Service Unit) police officials and OC GSU Training camp had been used as instruments in this case under influence, either financial or some other compulsion,” the report said.

It also said the Kenyan police account of “mistaken identity” contained contradictions, and that statements given by GSU officers contradicted one another.

In December 2022, then Islamabad High Court chief justice Umar Ata Bandial took suo motu notice of the murder and ordered the interior secretary to register a case over the “brutal killing”.

In June 2023, the then attorney general of Pakistan told the SC that Kenya’s high commissioner had informed the government that signing MLA instrument was necessary for further proceedings.

He said Kenya had sent a draft, which was being shared with relevant institutions for their input, and added that he would update the court on it.

In March 2025, the government informed the SC’s Constitutional Bench that a mutual legal assistance agreement had been signed with the Kenyan government in connection with the murder case of Sharif, and was in the process of ratification.

Last November, the high-profile case was transferred to the FCC.