ISLAMABAD: The verdict handed down by the special court was a split decision, 2-1 in favour of retired Gen Pervez Musharraf’s plea to implicate other abettors in the treason trial.

Justice Yawar Ali of the Lahore High Court, while signing the 29-page order, wrote: “I have added my note of dissent”.

According to the reasons given for his dissent, Justice Ali felt that the former general’s counsel had failed to convince him that the former military ruler was not the sole accused in the treason case.

The judge stated that the defence counsel did not produce any witness in support of their claim that the former military ruler was abetted by others.

The six-page note of dissent opens with, “I have read the order authored by the worthy president (of the special court) Mr Justice Faisal Arab concurred by Mrs Justice Syeda Tahira Safdar and am not in conformity with it, hence am writing a note of dissent.”

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He notes, “No doubt after the emergency was imposed it was accepted wholeheartedly by the prime minister, cabinet members, members of Assembly, senior bureaucrats and those judges of [the] superior courts who opted to take fresh oath. At this stage, it cannot be concluded that this is an offence with a continuing cause of action meaning thereby that all those persons who acted upon, accepted, ratified and subsequently took concrete steps for implementation of the proclamation of emergency and other steps taken in pursuance of the same ought to be treated as aiders and abettors.”

Justice Ali added that: “The learned counsel of applicant (Gen Musharraf) has failed to point out; either from the documents, which are on the record, or from the evidence which has been adduced that specific, clear and unequivocal advice was given to the applicant in terms of Article 48 of the constitution and he acted upon the same in his capacity as president.”

“The learned counsel for the applicant has been unable to persuade me to direct the complainant to get the case re-investigated. In the ultimate analysis the outcome of the case would depend on the evidence which is brought on record,” he concludes

According to the dissenting note, Justice Ali was of the view that the major offence was the imposition of emergency, but the persons who were involved in subsequent events, including the implementation of emergency, could not be treated as aiders and abettors.

The judge also referred to the statement of former Punjab governor Khalid Maqbool, saying that according to his testimony, Mr Maqbool was not consulted and that the emergency was imposed by Gen Musharraf on his own.

Published in Dawn, November 22th , 2014