169-page verdict released: 'We find the accused guilty as per the charge'

General Pervez Musharraf (retd) has persistently and stubbornly strived ever since the commencement of this trial to delay, retract and in fact evade it, said the majority judgment of Special Court in the high treason case.

A three-member Special Court presided over by Chief Justice of the Peshawar High Court (PHC) Waqar Ahmed Seth, Justice Nazar Akbar of the Sindh High Court (SHC) and Justice Shahid Karim of the Lahore High Court (LHC) on December 17 with 2:1 handed down death sentence to former army chief General Pervez Musharraf (retd) in the high treason case under Article 6 of Constitution through short order.

The detail judgment of 169-page released on Thursday said: "We find the accused (Musharraf) guilty as per the charge. The convict be therefore hanged by his neck till he dies on each count (total five charges) as per charge." Justice Nazar Akbar has dissented with the majority judgment.

Justice Waqar Ahmed Seth said: "We direct the law enforcement agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to D-Chowk, Islamabad, and be hanged for three days." Justice Shahid Karim, who has given majority judgment, did not concur with the portion of 'dragging Musharraf's corpse to D-Chowk.'

Justice Shahid Karim wrote, "I have read the judgment of the President of Special Court (Justice Waqar) and concur with the findings and punishment, except the para 66 (that deals with dragging of Musharraf body to D-Chowk)."

The judgment said the Special Court has generously granted numerous opportunities to Musharraf to join the trial. His convenience was acceded to when the presence of the accused was dispensed with after framing of the charge, yet the accused opted to become a fugitive from law. However, it has been the plea of accused throughout that either on account of ill health or for security hazards he could not reach up to this court to face the trial.

Justice Waqar wrote that the trial of high treason is the requirement of the Constitution against all those individuals who undermine or attempt to undermine the Constitution by any means. He stated that indeed, the portion of the judgment and execution of the sentence is nowhere defined, "but since it is first impression case and the sentence of death is announced in his absence after declaring the convict as proclaimed offender; therefore, the sentence is supposed to be executed and in case of his death a sentence, to this extent para 65 prescribes the mode of execution."

The judgment said this court after presentation of "undeniable, irrefutable and unimpeachable evidence" by the prosecution against the accused reaches the conclusion that indeed the accused is guilty of high treason and deserves exemplary punishment.

"It is our considered view that the accused in the high treason case has been afforded more than his due share of fair trial." The protected trial of a constitutional and not any ordinary offence that began six years ago in 2013 has yet to see its end in 2019."

The accused, who has been given every opportunity to defend himself, has by his conduct in the proceedings only evinced his "utter contempt" for the law and the legal institutions in this country. The facts of this case are well documented. The documents clearly demonstrate the guilt on the part of the accused. They prove beyond a shadow of reasonable doubt all the charges of high treason levelled against accused by the State.

It would be in the interest of justice that all those involved (if any) in facilitation of the escape of the fugitive accused may also be brought in the net of due course of law and their criminal acts (if any) may be investigated and tried in accordance with law.

The record inclusive of the case properties be kept under lock and key with the Registrar of the Court till further orders.

The judgment noted that the original complaint No. 1 was filed after proper investigation by FIA, but the present application for adding three persons former Prime Minister Shaukat Aziz, ex-federal minister for Law Zahid Hamid and ex-CJP Abdul Hameed Dogar no investigation has been conducted, similarly, in respect of the aider and abettors a course of action has been prescribed in the Act, 1976.

It said that the government is at liberty to file separate complaints against the named persons and others, "but why only these three persons," he questioned.

Regarding the application for summoning PW Azam Khan, senior officer of Joint Investigation Team, the court noted that it seemed to be an afterthought as the prosecution closed its evidence on 18-09-2014.

The learned counsels for the prosecution and the defense in the last hearing instead of arguing the case again filed application for adjournment. The judgment said that the purpose of filing application was to delay the decision therefore dismissed them.

Lastly, when the defense counsel was again directed to argue the case on merit, he refused rather left the rostrum, thus being left with no other alternate "we have perused the entire record and the written arguments submitted by the earlier prosecution team."

It is indeed a celebrate principle that a Special Law prevails over general law, reliance is placed on Syed Mushid Shah vs Federal Investigation Agency's case; thus Section 366(2), 512(1) CrPC would give way to Section 9 of the Act. The ordinary sessions trial would halt on willful absence of the accused, as a judgment cannot be pronounced in absence of accused u/s 366(2) CrPC, yet Section 9 of the Act is couched in such words as to lead to the conclusion that the legislature had visualized the present scenario where the accused is evading the due process of law by willfully absenting himself. Such being the case, the command of Section 9 of the Act is to continue the trial and reach it to its logical ending.

In the Lahore High Court Bar Association vs General (retd) Pervez Musharraf case, the Supreme Court has while making reference to Section 9 of the Act directed this Special Court to continue with the trial irrespective of the absence of the accused. Thus the Court proceeded with the matter and decided the fate of the trial.

The judgement said the accused has not denied the imposition of emergency, the proclamation order, prescribing a novel oath for the judges of the superior courts and his speech on the eve he imposed emergency. However, Musharraf presented the defense; that there were compelling circumstances justifying these acts. These circumstances were the upsurge in terrorist activities, complete breakdown of the government machinery on account of arbitrary interference of courts under the grab of judicial activism and the poor state of economy. Second defense plea is that it was not the voluntary act of the accused. He was advised so by the cabinet, the prime minister and by key leads of the State institutions.

The judgment said, "In our country, during 72 years of its independence, to our misfortune several times, the constitutions framed by legislative bodies were desecrated. Sovereignty of people was not allowed to flourish and get deep-rooted in the polity of our country. Prior to 3rd November, 2007, the Constitutions were either abrogated or put in abeyance and the democratic system of governance was put to an end."

For the first time, the Constitution 1956 was abrogated on 7th October, 1958, and Martial Law was imposed by President Iskandar Mirza, who dismissed the Central and Provincial governments, dissolved the parliament and the National and the Provincial Assemblies. On 25th March, 1969, General Agha Muhammad Yahya Khan abrogated the Constitution of 1962 and promulgated Martial Law. On 5th July, 1977 once again Martial Law was imposed and the Constitution was put to abeyance. Justice Waqar wrote; "Had the superior judiciary, at that time, not introduced the 'Doctrine of Necessity' and had proceeded against the usurpers, abrogaters, subvertors, the nation would not have seen this day at-least, where an officer in uniform repeats this offence.

Justice Shahid Karim, another member of the court, in his order stated; "I have read the judgment of the President of Special Court (Justice Waqar) and concur with the findings and punishment, except the para 66 (deals with dragging of Musharraf body to D-Chowk)."

Justice Nazar Akbar in the dissenting note said he happens to dissent with the majority view held by the other members of the bench. He stated that Musharraf imposed emergency in the country on 03-11-2007. The parliament in April, 2010 had introduced the suspending the Constitution in the definition of high treason. Until that time the definition of high treason was restricted to the acts of 'abrogation' and 'subversion'.

He noted that the new prosecution team comprising Ali Zia Bajwa and Munir Hussain Bhatti seemed to have not even read the order sheet of the present proceeding to rebut or raise objection on these two points of defence. Strangely enough even the defense team seemed to have forgotten that they have to press their plea of retrospective effect of amendment and willful discrimination by the prosecution to single out their client to prosecute him for an offence of High Treason, which by its design is such act that it cannot be committed by an individual single handedly. Both the prosecution and the defense teams were competing with each other to win an adjournment to ensure that the trial should not conclude, come what may.

The plea of the accused regarding having issued proclamation after the situation was reviewed in the meeting with the prime minister, governors of all provinces and the other army officers.

He stated that the burden of proof was on the prosecution to show that it was an individual act of the accused and no one else has even advised or consented or issuing the proclamation of emergency was not discharged from the shoulders of the prosecution.

"In my humble view, the entire cabinet of Prime Minister Shaukat Aziz and all others civil and military establishment along with parliament were on board to accomplish the task of retaining the political office of the President of Pakistan General (retd) Pervez Musharraf under National Reconciliation Ordinance."

All the actions of 3rd November, 2007 were political actions of the civil government headed by the President as ceremonial head who alone was both the civilian and military command-in-chief of armed forces with Shaukat Aziz as chief executive.