ISLAMABAD: The Sup­reme Court on Tuesday ordered fixing before one of its benches an application filed by former president retired Gen Pervez Mushar­raf against the court registrar’s decision to return an earlier appeal seeking to overturn the Dec 17, 2019 death sentence awarded to him by the special court in the high treason case.

The decision to fix the matter before a bench was taken by Justice Umar Ata Bandial after hearing Advocate Salman Safdar, Gen Musharraf’s counsel, in his chamber. The matter will be taken up by a three-judge SC bench whenever the case will be fixed.

On Jan 18, the SC registrar office had returned Gen Musharraf’s appeal on the grounds that unless the petitioner surrendered himself, his plea could not be entertained. The former military ruler is presently living abroad.

Order 23, Rule 8 of the Supreme Court Rules 1980 empowers the apex court not to accept any petition unless the convict surrenders to the authorities.

Gen Musharraf in his appeal requested the apex court to set aside the conviction since the trial was conducted and completed “in sheer violation” of the Consti­tution as well as the Code of Criminal Procedure, 1898.

The appeal argued that in a nutshell the case of the appellant was that he was being tried for a constitutional crime in an entirely unconstitutional manner. It stated that Gen Musharraf was a highly decorated former four-star general of the Pakistan Army and had a remarkably distinguished career as a servant of this country.

He had served as an army officer for nearly 43 years and through honesty and hard work reached the highest echelons of service. He had served as the 13th chief of the army staff from October 1998 to November 2007 and was also the 10th chairman of the Joint Chiefs of Staff Committee from 1998 to 2001. He had also served as the 10th president of Pakistan from 2001 to 2008, the appeal said.

During his tenure as president and chief executive of the country, Gen Musharraf was instrumental and played a leading role in restoration of the economy after its near collapse in the late 1990s, the petition said, adding that his policies salvaged a near bankrupt economy and transformed it into the 4th fastest growing economy in the Asian region.

On the foreign policy front, the appeal said, Gen Musharraf guided Pakistan through its toughest foreign policy crisis with his astute and exemplary leadership after the Sept 11 attacks in the United States. In the aftermath of these attacks, Pakistan allied with the US and other powers in the global war on terror and the country rose to prominence on the world map, it said, adding that Gen Musharraf had built the foundation of a lasting peace process with India and taken several initiatives for resolution of the disputed territory of Kashmir.

LHC decision challenged

In a separate development, the Sindh High Court Bar Association challenged the Jan 13 Lahore High Court decision to declare unconstitutional the Special Court verdict and sought to set aside the LHC judgement.

Filed by senior counsel Rasheed A. Razvi, the petition requested the Supreme Court to restore the Dec 17, 2019 Special Court judgement convicting Gen Musharraf of subverting the Constitution. It argued that the LHC verdict suffered from gross illegality, mis-appreciation of facts and non-appreciation of law and was, therefore, liable to be set aside by the apex court.

The appeal contended that the high court verdict was based on misreading of evidence without appreciating the material produced by the prosecution during the trial. Moreover, it added, the high court also failed to take note of the fact that the material produced by the prosecution before the special court had not been denied by Mr Musharraf at any stage of the case and it was a well-settled principle of Qanoon-i-Shahadat Order that the facts when not denied deemed to have been admitted by the parties and the admitted facts and circumstances needed not to be proved.

The petition contended that the LHC verdict was contrary to the law laid down by the superior courts as well as against the dicta laid down by the Supreme Court in the 2019 Lahore High Court Bar Association case. “It is a well-settled principle of law that the criminal courts are supposed to take into consideration the overall effect of the prosecution case in order to ascertain whether crime was committed or not and unless the discrepancies, contradictions have impaired the intrinsic value of the prosecution evidence, the same is not liable to be discarded,” it said.

The appeal argued that the two instruments — proclamation of emergency and Provisional Constitution Order 2007 — were issued by Gen Musharraf in his capacity as the army chief, whereas the third instrument — Oath Order 2007 — was issued by him in his capacity as the president.

It said that neither the Constitution nor any law had allowed Gen Musharraf to promulgate any of these instruments in any of his capacities and, therefore, the actions of Nov 3, 2007 were patently unconstitutional, illegal and invalid. Therefore, the appeal contended, the judgement issued by the Special Court declaring that Gen Musharraf was guilty of treason was legal and in accordance with the Constitution.

Published in Dawn, February 26th, 2020