The federal government has notified Chief Justice of Lahore High Court Muhammad Yawar Ali as President and Justice Nazar Akbar as judge of the Special Court. Secretary Ministry of Law and Justice Karamat Hussain Niazi on Wednesday issued notification for the appointment of president and judge of the Special Court.
The notification says: "In exercise of the powers conferred by sub-section (2) of Section 4 of Criminal Law Amendment (Special Court) Act, 1976, the federal government in consultation with the Chief Justice of Pakistan appoints Chief Justice of Lahore High Court Muhammad Yawar Ali as President of Special Court and Justice Nazar Akbar, a judge of Sindh High Court, as the judge of Special Court for trial of offence of high treason under the High Treason (Punishment) Act, 1973."
Justice Nazar will replace Chief Justice of Peshawar High Court Yahya Afridi, who had recused from the bench on March 29, 2018. Now the Special Court will comprise Justice Yawar Ali, Justice Nazar Akbar and Justice Tahira Safdar. In the last hearing, Musharraf's counsel had alleged that Justice Afridi was representing former Chief Justice Iftikhar Muhammad Chaudhry in a case against the 3rd November, 2007, emergency, promulgated by former dictator.
Yahya Afridi became head of Special Court when Chief Justice of PHC Mazhar Alam Khan Miankhel had been elevated to Supreme Court on December 30, 2016. Before his elevation Justice Miankhel on July 20, 2016, had directed State Bank of Pakistan to freeze former General Pervez Musharraf's bank accounts and for confiscation of properties owned by him. Justice Faisal Arab was the first head of the Special Court and Justice Yawar Ali and Justice Tahira Safdar its members. When he became judge of Supreme Court on December 14, 2015, Justice Miankhel had replaced him.
The federal government on 12th December 2013 had filed a private complaint against former President and Chief of Army Staff (CoAS) General Pervez Musharraf (retd) for subverting, abrogating, suspending, and holding in abeyance the Constitution. It sought Musharraf's trial, conviction and punishment as envisaged in Article 6 of Constitution. Five acts of the high treason against Pervez Musharraf have been mentioned in the complaint. First, on 3rd November 2007, in his capacity as CoAS he issued a proclamation in his own name, to hold the Constitution in abeyance.
Second, Musharraf in his capacity as Commander-in-Chief of Pakistan Army by adopting unconstitutional means abrogated, subverted/suspended/held in abeyance the Constitution by issuing the Proclamation, hence, committed the offence of high treason as defined in Article 6 of the Constitution. Third, Musharraf as self-appointed CoAS vide notification 2-9/2007-Min-I on 3rd November 2007 also issued Provisional Constitution Order (PCO) No. 1 of 2007. By issuing PCO No. 1 of 2007, letter and spirit of the Part II, Part III, Part IV, Part VII, Part XI and Part XII of the Constitution was abrogated, subverted and suspended. Musharraf by issuing Oath of Office (Judges) Order 2007 grossly abrogated and subverted the letter and spirit of Part I, Part II and Part VII of Constitution. It further states that through issuing Oath of Office of (Judges), Musharraf also committed third act of high treason.
Fourth, Provisional Constitution (Amendment) Order 2007, issued by the former military dictator also abrogated, subverted and suspended the letter and spirit of various provisions of the Constitution including it Part I and Part XI.
Fifth, Pervez Musharraf, who had occupied the office of President since June 2001 by issuing Constitution (Second Amendment) Order, 2007 further amended Article 41, 44, 193, 194, 208 and 270C of the Constitution, which removed the constitutional bars in Article 44 and 63 to his third-term election in uniform during the pendency of his case in the Supreme Court. He committed the fifth act of high treason in furtherance of his self-serving objectives.
"The retired general intentionally committed the offences to perpetuate his illegal occupation of highest state office, used for unconstitutional rule and to ward off any possible adverse verdict that could disrupt his continuous usurpation of power and to thwart the sub judice case." The complaint maintains this aspect has been so conclusively determined and held by the apex court in PLD 2009 SC 879.
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