Former Army Chief and President General Pervez Musharraf (retd) challenged in the Supreme Court the Special Court judgment that awarded him death sentence in the high treason case, saying he has been denied the right to a fair trial under Article 10-A of Constitution.
He submitted that since the Special Court proceeded in his absence and had also convicted him in his absence, therefore he qualifies to be heard at appeal in his absence.
Pervez Musharraf on Thursday filed criminal appeal through Barrister Salman Safdar under section 12(3) of the Criminal Law Amendment (Special Court) Act, 1976 read with Article 10-A of the Constitution for setting aside the order of the Special Court dated 17.12.2019.
The Lahore High Court on January 13, 2020 declared the formation of Special Court as "unconstitutional" and quashed its judgment in the high treason case.
The ex-COAS stated that he was being tried for an alleged constitutional crime in an entirely unconstitutional manner. He has been denied the right to a fair trial, squarely against Article 10-A of the Constitution. Even his counsel was not allowed to assist the learned Special Court in a case carrying capital punishment.
The Special Court presided over by Chief Justice of the Peshawar High Court (PHC) Waqar Ahmed Seth and comprising Justice Nazar Akbar of the Sindh High Court (SHC) and Justice Shahid Karim of the Lahore High Court (LHC) on December 17, 2019 with 2:1 handed down death sentence to Pervez Musharraf.
Musharraf was accused of suspending and abrogating constitution on 3rd November, 2007, and promulgating emergency and Provisional Constitution Order (PCO) in the country.
The appellant stated "the federal government failed to follow the mandatory procedure for filing a complaint for the offence of high treason. The prosecution was laced with malice, misconduct and employed illegal and unfair use of discretion. The Special Court was improperly constituted and was coram non judice. The prosecution failed to adequately define and prove, through evidence, the charge of high treason.
"No trial can be deemed to have been conducted against him as he was neither examined under Section 342 CrPC nor was he afforded an opportunity to lead defense evidence. The judgment penned by the Special Court fails to fulfill the requirements of Section 367 of CrPC. The Special Court violated Article 10(1) and 10-A of the Constitution and Section 340(1) CrPC by removing his counsel and then appointing an inexperienced counsel at state expense.
"The prosecution was selective as all the aiders and abettors were not sent for trial initially. However, belatedly when the aiders and abettors were sent up for trial through an amended statement/complaint, the Special Court continued the same in violation of Section 6(1)(cc) and (g) of the 1976 Act. The learned Special Court conducted a trial in absentia which is against the Article 10-A of the Constitution".
The Special Court, fully recognizing and acknowledging appellant's ailments in 2013 and 2014 exempted him from personal appearance. He submitted that all eight prosecution witnesses were examined in his absence.
Musharraf contended that on no occasion did he or his legal team delay the matter. Till such time when he was present in the country, his legal team expeditiously followed up the case and examined all the prosecution witnesses, stated the appellant.
The former president stated that after he left the country he or his legal team could not proceed with the case, and while abroad, he fell seriously ill and was totally unfit to travel and return to Pakistan and face trial.
The observation in the impugned judgment about delay is only aimed at shifting the blame from the Special Court to the legal team, so as to weakly justify trial in absentia. The appellant stated that the interim orders of the Special Court will reflect that the Special Court was satisfied that he was genuinely ill and unwell.
The action of labeling and branding the appellant as a proclaimed offender under the circumstances is highly questionable. He stated that on many occasions the Special Court accepted the application on medical grounds. In support of the medical condition, irrefutable hospital records and medical certificates along with photographic and video evidence are also on the file, confirming the very grave illness of the appellant.
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