If conviction of Musharraf upheld ‘then it must be known that it will have consequences...’: SC judge

ISLAMABAD: The Supreme Court said if it upholds former President Pervez Musharraf’s conviction in the high treason case then his awards and pensionary benefits would also go as per the Army Act, 1952.

A four-member bench, headed by Chief Justice Qazi Faez Isa, and comprising Justice Syed Mansoor Ali Shah, Justice Athar Minallah, and Justice Aminuddin Khan, on Tuesday, heard the appeals of Bar Councils/ Associations and two individuals against the judgment of a three-member bench of the Lahore High Court (LHC).

Justice Mansoor said: “I am speaking for myself that in case we (the SC) uphold his (Pervez Musharraf’s) conviction then it must be known that it will have consequences, and it will affect any award and the pension under the Army law.”

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The chief justice asked Musharraf’s lawyer, Salman Safdar, that on the next date make a submission that if the conviction is upheld then there are consequences, thereof, pensionary right to the legal heirs. Justice Athar asked Salman to also make a submission regarding Article 270-AA of the constitution and the Supreme Court’s decision on 12th October 1999.

Hamid Khan, who appeared on behalf of Tauseef Asif, ex-President Lahore High Court Bar Association (LHCBA), Rawalpindi Bench, Vice-Chairman Pakistan Bar Council Haroon Rasheed and its Chairman Executive Committee Hassan Pasha, Rasheed A Rizvi, representing Sindh High Court Bar Association (SHCBA), Hafiz Abdur Rehman Ansari, and Azhar Iqbal concluded their arguments against the LHC’s judgment dated 13-01-2020.

Additional Attorney General Aamir Rehman rather than supporting the impugned judgment relied upon the apex court’s judgments. Safdar submitted that the Special Court on 17-12-2019 had announced the judgment, while the LHC delivered a short order on 13-01-20 on the constitution of Special Court. He stated his client had filed the appeal against the Special Court’s judgment on 16-01-2020.

The Court noted this meant Musharraf was aware of the LHC’s short order but did not rely on it while filing an appeal against the Special Court’s judgment before the Supreme Court. He sought sometime to contact Musharraf’s family, saying, till now, not succeeded in contacting them.

The bench said that in the last hearing, it had issued notices to the legal heirs of Pervez Musharraf and the matter was reported in the media across the world. It; therefore, asked Salman to get instruction from Musharraf’s family before the next date regarding the hearing of his appeal on merit.

Earlier, Hamid Khan argued that at that time everybody, including the amicus curiae (Barrister Ali Zafar), and the then federal government (the PTI) seemed to be on one page. Justice Mansoor then questioned what the page was. The senior counsel replied; “to declare the Special Court’s judgment void ab initio”.

Justice Athar questioned why the political government (the PML-N), which had filed a high treason case against Musharraf for imposing an emergency on 3rd November 2007 was reluctant to initiate proceedings when its government was overthrown and the Parliament dissolved in 1999.

He said one man controls the government. Justice Mansoor remarked whosoever is the government, but for the last 70 years, the page is one.

Justice Athar questioned how many times Article 6 of the constitution was invoked in the country’s history. Hamid Khan said for the first in the history of Pakistan a military dictator was tried under Article 6, adding the military regimes have badly damaged the country.

Justice Athar said the question is whether the judges of the Supreme Court in the SHCBA case had set aside Zafar Ali Shah’s judgment. He then said the answer was no. This court had legitimised the unlawful acts of the military dictator, adding how many times the judges of this Court had expressly condemned it?

The chief justice said the answer could be that in the first instance (12th October 1999) the Supreme Court gave constitutional cover to his (Musharraf) action because of Article 270AA of the constitution. But the second time (3rd November 2007 emergency) it did not happen.

An interesting interaction took place on the country’s history of democracy between Chief Justice of Pakistan (CJP) Qazi Faez Isa and Justice Athar Minallah of the Supreme Court during the hearing on appeals against the late military dictator Pervez Musharraf’s sentence. On the mention of the October 12 coup by Musharraf along with his November 3 emergency, the CJP suggested learning from the past.

At this, Justice Athar said: “If we have to go into the past, then Pervez Musharraf abrogated the Constitution, dissolved assemblies, and this very court gave way to it.”

He further said the judges who deemed Musharraf’s martial law legal should also be tried. “We must speak the truth,” he added.

“Why was action taken only on the November 3 action,” asked Justice Athar, saying if action was taken over the November 3 actions only when judges were attacked, there would be questions of fair trial.

“Was the attack on judges a more serious matter than dissolving assemblies and suspending the Constitution,” he questioned.

CJP Isa said he could not undo what happened in the past. “Was everyone punished for moving forward in South Africa,” he asked further. “We should learn from history and teach the next generation too.”

“If we have to become a nation, then we need to correct the future by learning from the past,” Justice Isa remarked, adding that the media was also responsible and it should also be tried.

He further asked how many journalists were in favour of and against martial law.

Justice Athar said history meant that when someone was powerful, no one spoke against him, but when they became weak, there were judgements against them.

Salman Safdar contended that after the Special Court’s judgment, the proper remedy for his client was under Section 12(2) of Criminal Law Amendment (Special Court) Act, 1976. In response to the chief justice’s query, he said; “I think the LHC’s judgment was not legal.” The bench noted that Musharraf filed an appeal against the Special Court’s judgment, as he did not lend credence to the LHC’s verdict and rather accepted the Special Court’s judgment and its constitution under the Act 1976.

The SC bench noted that the LHC has no mention of the Special Court’s verdict in its judgment. A three-member bench of the LHC, headed by Justice Syed Mazahar Ali Akbar Naqvi, and comprising Justice Muhammad Masood Jahangir, and Justice Ameer Bhatti, on 13-01-2020 had declared; “That the Special Court was established without an iota of doubt that very basis of initiation of proceedings against the petitioner/ General Pervez Musharraf(retired), since its inception to the culmination are beyond the constitutional mandate, ultra vires, coram-non-judice, unlawful, hence, any superstructure raised over it shall fall to ground.” It further said; “Trial in absentia is declared as illegal, unconstitutional being repugnant to injunctions of Islam, as well as, Article 2-A, 8 and 10-A of the Constitution.”

The Court said Hamid Khan has filed a written synopsis of his submission, and if anyone else is interested then can file the synopsis of their arguments before January 5, 2024, and adjourned the case until January 10, next year.

Copyright Business Recorder, 2023