ISLAMABAD: The Supreme Court, on Wednesday, set aside the Lahore High Court’s judgment, which declared the special court, constituted for Gen Pervez Musharraf’s trial in the high treason case, “unconstitutional” and subsisted conviction of former army chief under Article 6 of the constitution.
A four-member bench, headed by Chief Justice QaziFaez Isa, and comprising Justice Syed Mansoor Ali Shah, Justice Athar Minallah, and Justice Aminuddin Khan heard an appeal of the ex-COAS, against the Special Court’s verdict, and the petitions of Pakistan Bar Councils (PBC), Sindh High Court Bar Association (SHCBA), former president of Lahore High Court Bar Association (LHCBA), Rawalpindi Bench, and others against a three-member bench of the Lahore High Court (LHC)’s verdict to declare the judgment of the Special Court, null and void.
Additional Attorney General Aamir Rehman, representing the federation stated that he does not support the impugned judgment of the LHC.
A Special Court, set up under Criminal Law Amendment (Special Court) Act, 1976, on December 17, 2019, had sentenced Pervez Musharraf to death in a high treason case. Former chief justice of Peshawar High Court Justice Waqar Seth, who presided over the Special Court, and Justice Shahid Karim, a judge of LHC and a member of Special Court, had handed the ex-COAS, death penalty. Justice Nazar Akbar, a judge from SHC, and another member of the Special Court, had opposed the verdict of sentencing him to death and cleared him of the accusations.
However, a three-judge bench of the LHC, headed by Justice Syed Mazahar Ali Akbar Naqvi (now SC judge), Justice Muhammad Ameer Bhatti (now CJ LHC), and Justice Chaudhry Masood Jahangir, in January 2020 had quashed the verdict given by the Special Court and declared the formation of the Court “unconstitutional.”
The LHC ruled that the steps were taken in violation of the Constitution, law, and principles of the criminal justice system laid down by the superior courts. It stated that constitutional parameters were not fulfilled in deciding the high treason case, and added that trial in absentia is a violation of Article 10-A which guarantees the right to a fair trial to the accused.
The detailed verdict of the LHC also stated that the case against the former president was neither prepared nor filed in accordance with the law. It stated that the cabinet’s approval to initiate the charges and filing of the case, which is mandatory, was not sought. It mentioned that amended Article-6 of the Constitution under which Musharraf was found guilty of suspending the Constitution, could not be applied in the said case.
The PBC, SHCBA, and LHCBA, had approached the apex court against the LHC’s verdict, while General Musharraf had challenged the Special Court’s judgment in the SC on 16-01-2020 under Section 12(3) of Criminal Law Amendment (Special Court) Act, 1976.
During the proceeding, Barrister Salman Safdar, who had filed the appeal on behalf of Musharraf, informed that his client died in Dubai on February 5, 2023. “I don’t represent anyone and also do not have instruction from the legal heirs.
The family has not responded to my messages. Since November 2023, I have tried contacting the legal heirs more than 10 times, but it appears they don’t like to respond.” Safdar also submitted, “I am making a submission on behalf of no one, but would like to point out the legal infirmities in the Special Court’s judgment.”
The chief justice noted that the appellant (Musharraf) never surrendered before the Court. Safdar replied that the non-surrendering was due to ill health. He said that under Section 431 of CrPC, the appeal abates if the appellant passes away.
He, however, contended that Musharraf’s appeal was heard after six years. Upon that, the chief justice asked; “Do you want us to plead guilty.” “We want the chief justice’s power be structured, and are trying to minimise, in fact, diminish the discretionary power.”
The apex court had also issued notice to the legal heirs of the appellant on all the addresses available within Pakistan and abroad. The notices were also issued in dailies, Dawn and Jang. But neither received any response from the family members of Musharraf, nor legal heirs appeared before the Court.
The chief justice said if my father is convicted in a murder case, files an appeal, and later on dies. The family will suffer from the stigma. Why should they be deprived of the right to remove it? He said; “Let this issue be alive.” He asked the counsel since you have no instruction from the deceased’s family then how this Court will hear you?
The bench declared that the impugned judgment passed by the LHC was not sustainable and accordingly set it aside.
Pakistan Bar Council’s Vice-Chairman Haroonur Rashid and its Chairman Executive Committee Hassan Raza Pasha, in a statement, appreciated the SC’s decision.
They expressed that Pervez Musharraf usurped the power after the coup in October 1999 and ruled in Pakistan as Army Chief and then President of Pakistan till 2008 while abrogating the 1973 Constitution. They said that Musharraf was guilty of high treason under Article 6 of the Constitution for subverting the Constitution of Pakistan, twice, first on 12th October 1999 and again on 3rd November 2007 for imposing Emergency and the Constitution was held in abeyance/suspended.
Haroon and Hassan paid tribute to late Justice Waqar Ahmed Seth, for his historic judgment in a high treason case against the military dictator Pervez Musharraf.
They further expressed that the Supreme Court of Pakistan has proved that the judiciary is independent. The whole legal community has welcomed this historic judgement and also demanded that the Federal Government initiate the case under Article 6 against delinquents and those responsible, who violated Article 5 of the Constitution of Pakistan.
They were of the view that the Supreme Court played its constitutional role in strengthening democracy and the rule of law in the country through its historic judgment which would strengthen the principle of supremacy of the Constitution and would be remembered as an example in the political history of Pakistan.
Copyright Business Recorder, 2024
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