ISLAMABAD, April 30: A counsel representing former president General (retired) Pervez Musharraf on Tuesday urged the Supreme Court to show restraint else it will give an impression as if the court was interested in prosecuting Musharraf under the treason charges.
“Even a slight hint at the registration of a complaint against Musharraf would prejudice the special court that will try Musharraf, creating an impression as if the court is interested in pressing the treason charges,” argued Advocate Ibrahim Satti before a three-judge Supreme Court bench. There will be no end to it then, the counsel added.
Headed by Justice Jawwad S. Khawaja, the bench had taken up a set of petitions seeking a direction for the initiation of treason charges against the former military ruler by the federal government.
Any intervention on part of the apex court regarding registration of a treason case against Musharraf will influence his defence before the trial court, denying him the opportunity of a fair trial, the counsel emphasised.
If at all, the apex court decides to order the government to commence treason charges against Musharraf, it should also give a direction to the trial court not to get influenced with the current proceedings before the apex court, pleaded the counsel.
Justice Khilji Arif Hussain, one of the members of the bench, asked the counsel even if the court ignores the fact that the July 31, 2009, judgment declaring the Nov 3, 2007, emergency unconstitutional was in field, can the apex court not direct the government to do its duty if someone abrogates the constitution and repeats what happened on November 3.
Justice Khilji also expressed surprise over a statement by the government that treason case against Musharraf at this juncture could threaten the security of the state. He also recalled the stance taken by the caretaker government that they had a specific mandate limited to holding of the elections only.
Meanwhile, Advocate Satti argued that under the basic theory of separation of powers, the Supreme Court should not step outside its jurisdiction and instead leave this matter to the executive to decide.
The counsel reminded the court that every now and then the apex court confirms capital punishment but the president pardons it under the power vested with him.
Referring to the July 31 verdict, Satti argued that no explicit direction had ever been issued against Musharraf in the verdict rather whatever stated against him were remarks and observations.
“Neither Musharraf was impleaded as a respondent in the case nor the Sindh High Court Bar Association as petitioner had sought directions to prosecute Musharraf under treason charges,” Satti contended, adding the former military ruler became a party in the case at a belated stage when the apex court issued summons that too were not delivered to him.
Moreover, the 14-judge bench did not get any independent assistance on Musharraf’s role since no amicus curiae was appointed, even the state never contested against the Nov 3 emergency.
Now any decision against the former president on the basis of the July 31 judgment would violate the cardinal principles of natural justice since he was never given the opportunity to be heard.
And nowhere the apex court said in the eight conclusions in its short order of July 31 to initiate a treason case against Musharraf, he said.
Even if the court thinks to rectify the error, the bench is at the liberty to take a suo motu review of the July 31 judgment, Satti observed, adding no petitioner or any party had approached the apex court during the last four years.
He recalled that the October 14, 2010, Sindh High Court (SHC) order against which one of the petitioners had approached the apex court had held that the court in its landmark judgment of July 31 had not issued direction for prosecuting Musharraf.
After Satti concluded his arguments, Advocate Malik Qamar Afzal, another counsel for Musharraf, said he would focus his arguments more on the right of Musharraf to contest the elections. The court will resume hearing on May 2.