A full bench of the Lahore High Court (LHC) on Monday unanimously nullified the formation of special court which sentenced former army chief and President Gen Pervez Musharraf (retd) to death in high treason case.
The bench comprising Justice Syed Mazahar Ali Akbar Naqvi, Justice Muhammad Ameer Bhatti and Justice Chaudhry Masood Jahangi set aside all steps starting from the formation of a special court, filing of complaint, appointment of prosecution team, trial in absentia and conclusion of the trial, ruling that they were done in violation of constitution, law and principles of criminal justice system laid down by the superior courts.
The court also struck down section 9 the Criminal Law Amendment (Special Court) Act, 1976, which allows the special court to conduct trial in absentia, being ultra vires of the Constitution.
The court ruled that trial in absentia is violation of article 10-A of the Constitution which guarantees the right of a fair trial.
Setting aside the filing of high treason complaint and appointment of prosecution team, the court also ruled that the treason case against the former president was neither prepared nor filed in accordance with law as the mandatory cabinet approval was not sought.
The court further ruled that the amended Article 6 of the Constitution, under which Musharraf had been found guilty of suspension of the Constitution, could not be applied in the case retrospectively.
The government presented in the court a summary and other record related to the formation of special court set up to try the former president for high treason.
A law officer also told the court that the constitution of the special court under Article 6 of the Constitution was not part of the agenda of federal cabinet meeting of the then government.
On Friday last, the court had directed the law officer to submit to it the concerned record and also present his arguments on next hearing.
The law officer said the matter of forming a case against Musharraf was never included in Cabinet's agenda. The court when asked about a Cabinet meeting held in this regard, the law officer responded that it was held on June 24, 2013, however the process of formation of special court was carried out without Cabinet's approval.
He added that the appointment of the judges was discussed in that Cabinet meeting. The law officer however responded in the negative when asked whether the filling of a complaint was discussed in any Cabinet meeting. The court also discussed the matter of imposing of emergency and observed that "emergency is part of the Constitution". It asked: "If the government imposes emergency, will a treason case be filed against it also?"
The bench also asked: "Can an emergency be imposed under Article 232?" The law officer said such a step would be in accordance with the Constitution. It further asked: "How, then, it will be deviation from the Constitution?" The law officer stated that under the 18the Amendment, the Parliament had suspended Article 6 as an offence. "An offence committed in the past cannot be punished after new legislation," he argued.
The court while examining the record presented before it also asked about the investigating team. The law officer said that about a 25-member team was constituted to conduct the inquiry. And only one out of 25 appeared before the trial court, he added.
"What is the value of inquiry when those who conducted inquiry did not appear before the trial court," the court wondered.
Pervez Musharraf had filed petitions challenging the special court's verdict and other relative steps including filling of the complaint and the selection of prosecution team by the then government headed by Mian Muhammad Nawaz Sharif.
Earlier, the counsel for Musharraf said the formation of special court was illegal. He said that Nawaz Sharif, who was Prime Minister at that time, had lodged a 'fake' case against Musharraf due to personal grudges. Justice Naqvi inquired about the section under which, the trial court had indicted the accused in the case. The law officer replied that indictment was carried out on the charge of violating Constitution by imposing emergency in the country.
The Special court on December 17 had sentenced Pervez Muharraf to death in high treason case. Justice Nazar Akbar had opposed the verdict of sentencing him to death and cleared him of the accusations while Justice Waqar Seth and Justice Shahid Karim handed him the death penalty.
The court had observed that the facts of this case were well documented and clearly demonstrate the guilt on the part of the accused.
The ex-president was facing treason trial under Article 6 of the Constitution as well as Section 2 of the High Treason Act for imposing emergency in the country on November 03, 2007, that also resulted in the suspension of 61 judges of the superior judiciary, including the then Chief Justice Iftikhar Mohammad Chaudhry.
On November 29, 2007, Gen Pervez Musharraf (retd) took oath as a civilian president and lifted the emergency, revoked the Provisional Constitutional Order (PCO) and restored a Constitution amended on November 15, 2007.
On August 18, 2008, Musharraf resigned as president after a nine-year rule in the country. On July 22, 2009, the Supreme Court had summoned him to defend his action regarding emergency while on July 31, 2009, the apex court had declared Musharraf's decision to impose emergency and promulgate PCO as illegal and unconstitutional.
The ex-president refused to respond to the court and departed for the United Kingdom after which his companions launched a political party "All Pakistan Muslim League (APML)" and made him its chairman.
On March 23, 2013, Musharraf returned to Pakistan on pre-homecoming protective bail for 10 days to participate in the general elections.
On April 8, 2013, the SC summoned ex-military ruler in the treason case and directed the interior ministry to include his name in the Exit Control List (ECL). On November 18, 2013, the then Chief Justice of Pakistan Iftikhar Chaudhry established a special court for the trial of Musharraf. The court on December 12, 2013, called him for proceedings.
On March 30, 2014, the special court indicted former president but on March 18, 2016, he left for Dubai to "seek medical treatment". On May 11, 2016, special court declared Musharraf an absconder as he did not return after getting bail in the treason case.
On October 8, 2019, the special court decided to hear the case on a daily basis and reserved its verdict on November 28. Musharraf, however, challenged special court's verdict and its formation before the Lahore High Court while a plea from interior ministry was also filed in Islamabad High Court (IHC).
AFP adds: "The filing of the complaint, the constitution of the court, the selection of the prosecution team are illegal, declared to be illegal... And at the end of the day the full judgment has been set aside," the prosecutor representing the government, Ishtiaq A. Khan, told AFP.
"Yes, he is a free man. Right now there is no judgment against him any longer," Khan added.
Musharraf's lawyer, Azhar Siddique, also told media outside the court in Lahore that it had "nullified everything".
The prosecution now has the option to file a new case against Musharraf with the approval of the federal Cabinet. However Saroop Ijaz, a senior lawyer in Lahore who is not affiliated with the case, said that unless the High Court orders the government to do so in its detailed verdict, he doubts any further action will be taken.
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