The Supreme Court was urged on Saturday to form a full court bench except the Chief Justice Iftikhar Muhammad Chaudhry to hear five identical petitions that had sought the prosecution of former President and army chief Pervez Musharraf under Article 6 of the Constitution, read with High Treason (Punishment) Act of 1973.
Meanwhile, the institution branch of the apex court returned Musharraf's Civil Miscellaneous Application (CMA) saying the prayer had no relevance to the submission of the plea to constitute a full court bench minus the Chief Justice of Pakistan. The branch said that CMA had not mentioned its purpose and a separate application could be filed in each case by Musharraf, if so desired.
The Supreme Court had directed Sahibzada Ahmed Raza Khan Qasuri, the counsel for Musharraf, during last hearing of the case to file a reply in the matter. On Saturday, Qasuri filed application in the matter through Advocate on Record Sardar M.Siddique Khan under Order XXXIII, Rule 06 of Supreme Court Rules, 1980 and raised multiple questions of law for determination by the court.
According to Qasuri, it is the exclusive domain of the federal government to initiate proceedings against any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.
He also pointed out through the CMA, "Whether it is not a fact that only an authorised officer of the Federal government is competent to lodge a report against a person who is accused of subverting the Constitution, and no one else, thus, the law has virtually closed all doors for anyone else in the country to initiate such proceedings".
Qasuri argued that it was not a fact that the Supreme Court was not competent under the dictates of the Constitution of Pakistan to issue any direction to federal government to initiate proceedings against his client saying initiation of proceedings under High Treason (Punishment) Act, 1973 was within exclusive jurisdiction of the federal government (executive).
He further argued," Whether it is not a fact that al the organs of the State namely executive, legislature and judiciary are the creation of the Constitution and the parameters of their power have been regulated by the Constitution. As long as all the three organs of the State exercise their power according to the Constitution, it ensures harmonious working of the State. But as soon as any one organ oversteps its Constitutional parameter of power and enters into the domain of other State organ's Constitutional power, it results in the Constitutional deadlock, thus, any direction given by the Honourable Supreme Court of Pakistan to federal government to initiate proceedings against Musharraf, would be a blatant violation of the principle of the tracheotomy of power".
The counsel for the former president of Pakistan raised the question of law and contended that it was a fact that any direction of the apex court to federal government would be tantamount to interference and undue influence over the executive's exclusive jurisdiction of initiating a complaint against any person who had subverted the Constitution. He contended that questions of law raised in the CMA were basically questions of national importance and great constitutional significance.
Qasuri maintained that many of the questions had not been adjudicated before and as such law had never been developed in this yet unearthed area of Pakistani law, saying there was a little guidance in modern jurisprudence from other jurisdictions as well. Musharraf's attorney said, "It would be appropriate and in accordance with justice and fair play that a full Court bench minus Honourable Chief Justice Iftikhar Muhammad Chaudhry may be constituted to hear this important constitutional controversy".
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