ISLAMABAD: The Special Court rejected on Friday a plea of former president retired General Pervez Musharraf for transferring his high treason trial to a military court and decided to indict him on March 11.
The three-judge court headed by Justice Faisal Arab of the Sindh High Court ruled that the application of the former military ruler “seeking transfer of the complaint (high treason) from this court to the court martial under the Pakistan Army Act (PAA) is dismissed”.
“It was a bad decision,” said Rana Ijaz, a defence lawyer, while standing on the rostrum. “The judges should not play the role of paid executioners,” he added.
Lawyers present in the courtroom objected to the remarks made by Rana Ijaz, who was Punjab’s law minister during the Musharraf regime. Even the defence lawyers asked him to sit down and advised him not to use such language for the honourable judges.
But the lawyer continued: “You (judges) can send me to jail if I said anything wrong.”
Justice Arab remained calm but said: “It appears that you are saying this to attract the attention of media persons.” He suggested that the defence lawyers could file an appeal against the order if they felt aggrieved.
“We hold that the PAA (Amendment) Act 1977 (Act X of 1977) stands repealed by virtue of the Federal Law (Revision and Declaration) Ordinance 1981…the accused upon his retirement in the year 2007 no more remained subject to the Army Act,” the court said in its order.
“The offences under the High Treason (Punishment) Act, 1973, are exclusively triable by the Special Court established under the Criminal Law Amendment (Special Court) Act, 1976, as its section 3 (2) ousts the jurisdiction of all other courts,” the order said.
The court said that since it had decided to indict Gen Musharraf after announcing the judgement on his application, the accused be produced before the court on March 11 for the purpose.
The court, however, reserved its verdict on a challenge to the appointment of Akram Sheikh as head of the prosecution team and asked defence lawyer Anwar Mansoor Khan to conclude on March 4 his arguments on the matter relating to the establishment of the Special Court.
At the last hearing on Tuesday, Dr Khalid Ranjha, another counsel for Gen Musharraf, had contended that the accused remained subject to the PAA even after his retirement and could only be tried by a military court.
He heavily relied on the Act X of 1977 according to which the offence of high treason falls under the ambit of PAA. He said the accused being a former army general had to be delivered to the commanding officer concerned for trial in a court martial.
“The trial of the accused was not initiated within the stipulated period of six months of his ceasing to be subject to the Act as per the requirement of Section 92 (2) of the Army Act only to deprive him (accused) of his fundamental right of having fair trial as guaranteed under the Constitution,” he contended.
But Akram Sheikh had argued that the Act X of 1977 was non-existent because it had already been declared unconstitutional by the Lahore High Court in its June 2, 1977, judgement. He said the offences under the High Treason (Punishment) Act, 1973, had never been made triable by the Army Act, except once on the promulgation of the Act X which applied only to specified areas and also for a specific period.
“The said act died its natural death on account of sunset clause,” Advocate Sheikh said, adding that the offence of high treason was not among the schedule offences of PAA and an accused of the offence could not be court-martialled.
On Friday, the court concluded: “It is evident that the accused cannot claim himself to be subject to the Army Act as he ceases to be so seven years ago. Had the accused still been subject to the Army Act, it would have made no difference as the offence described in the High Treason (Punishment) Act, 1973, is within the exclusive jurisdiction of the Special Court.”
