The Sindh High Court Bar Association (SHCBA) on Tuesday challenged the Lahore High Court (LHC) decision to strike down notification of the special court, which awarded death sentence to General Pervez Musharraf (retd) in the high treason case.
The petition prayed before the apex court to set aside the impugned judgment of January 13, 2020, passed by the LHC as it suffers from "gross illegality, non-appreciation of facts" and the law.
The impugned judgment is based on misreading of evidence and non-appreciation of the material produced by the prosecution during a trial, thus liable to be set aside, the petition states.
There is no material or case law, which supports the impugned judgment, therefore liable to be set aside, it says.
According to Section 129(3) of the Criminal Laws Amendment (Special Court) Act, 1976, "Any party aggrieved by the final judgment of the special court may prefer an appeal to the Supreme Court within 30 days of the passing of the judgment...", therefore no writ petition was competent in view of this section, the petition adds.
The petitioner submitted that the LHC was debarred under Article 199(5) of the Constitution read with the judgment of the apex court reported as PLD 2015 SC 50 to entertain writ petition against the special court, therefore, assailing its judgment before the LHC in writ is contrary to the Constitution and law.
The impugned judgment has failed to notice the material/evidence produced by the prosecution before the special court, which were not denied by Pervez Musharraf at any stage of the case and it is well settled principle of Qanoon-e-Shahadat Order, the facts when not denied deemed to have been admitted by the parties as well as the admitted facts and circumstances need not be proved.
The LHC has "erred" by not appreciating that the prosecution based its case on admitted facts, circumstances and evidence, which were neither denied by Pervez Musharraf on his own nor by the defence taken by him.
"The LHC failed to examine the true aspect of the matter and introduced its own verdict by setting the judgment of the special court, which is nothing but a piece of paper and against the provisions of criminal jurisprudence," it said.
The petitioner said that it had approached the apex court for the supremacy of law, rule of law and the basic salient features of the Constitution, which were based on justice and the independence of judiciary.
According to the petition, the minutes of the cabinet meeting of 24 June 2013 for formation of the special court under the Act, 1976 were available on the record on that basis a notification dated November 20, 2013, was issued by the Ministry of Law and Justice for the establishment of the Special Court.
Two instruments - Proclamation of Emergency and PCO No 1 of 2007 - were issued by Musharraf as the chief of army staff, which the third instructed i.e. Oath Order 2007 was issued by him in his capacity as president of Pakistan.
The petitioner submitted that neither the Constitution nor any law permitted former army chief to promulgate any of the said instruments in any of his capacities therefore, the action of 3rd November, 2007 were patently unconstitutional, illegal and invalid. The judgment passed by the Special Court declaring Musharraf guilty of the offence committed by him is legal and in accordance with the law.
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