KARACHI: The Sindh High Court struck down on Thursday the federal government’s order of preventing retired General Pervez Musharraf from leaving the country, but the former military ruler will have to wait for two weeks to find out if he could actually travel abroad as the court suspended the operation of its judgment for 15 days enabling the federation to file an appeal in the Supreme Court.
While disposing of Gen Musharraf’s petition against placing his name on the exit control list (ECL), a two-judge bench comprising Justices Mohammad Ali Mazhar and Shahnawaz Tariq ordered: “The Memorandum No.12/74/2012-ECL, dated 5th April 2013, placing the name of General (retired) Pervez Musharraf on Exit Control List, is struck down.”
The bench had reserved its judgment on May 29 after hearing final arguments of Attorney General Salman Aslam Butt and Gen Musharraf’s counsel Barrister Farogh Naseem.
The attorney general contended that the federal government could not take the risk of allowing the former president to leave the country because there was a great incentive for him to flee in view of a treason case that involved the death penalty.
He referred to the Hussain Haqqani case and said that the former diplomat was given permission to leave the country and he never returned.
He submitted that the treason case against Gen Musharraf was of political nature and because of that, under the treaties with various countries, including the UAE, it would not be possible to seek his extradition.
The attorney general was of the view that the SHC lacked the territorial jurisdiction, and that it was in the public interest not to permit the petitioner to go abroad.
In response, Dr Farogh Naseem said that the former president was being victimised and his trial was being pursued for political reasons and not to ensure the administration of justice.
He further relied upon a case law on the point that the apprehension that the petitioner would leave Pakistan was not germane to the legality of an ECL order.
Besides, he said, no grounds were given while placing the former president’s name on the ECL.
The bench in its 44-page verdict observed: “We are of the view that though the honourable Supreme Court as an interim measure directed the federation to put the name of the petitioner on ECL, but it reflects from the record that the federation before passing order by the apex court already put the name of the petitioner on ECL on 5-4-2013.”
The bench also noted in the judgment that mere registration of an FIR did not permit or warrant automatic inclusion of an accused person in the ECL.
The court observed that not a single ground was mentioned in the memorandum, placing the former president’s name on the ECL. “No case pleaded by the respondents that the petitioner’s name was placed on the ECL for the reasons that he is involved in corruption cases or caused loss to the government’s funds or property or he committed any economic crime where large government’s funds have been embezzled or he is threat to the national security or he is defaulter of tax or liabilities or involved in a case in which his name has been forwarded by the registrar of a high court, Supreme Court of Pakistan or banking court,” it added.
The court went on to observe that it was a well-settled law that mere pendency of civil or criminal cases against a citizen was no ground to deny him or her fundamental right of travel within or outside the country. “Merely on apprehension that the petitioner will not return back to Pakistan is no ground for depriving him from exercising his fundamental right.”
The court further noted: “No plea was taken that the reasons were not assigned in the public interest rather we are of the view that in the cases of high treason the public interest at large is involved to know the reason for prosecuting the accused of high treason.”
The bench also rejected the contention of the federal government regarding the extradition treaties with different countries and observed that the courts were not helpless as lately there were various examples in which the apex court passed order to ensure custody of accused persons, including Shahrukh Jatoi and Tauqir Sadiq.
“Though the learned Attorney General quoted the case of Hussain Haqqani but he did not point out any efforts made by the federation to ensure his presence in this country. Let us remind the learned Attorney General that according to the prosecution story the petitioner is also involved in four other criminal cases in which extradition would not be denied in any treaty with any foreign country. If in any case, the accused is absconded, the law is not helpless but a procedure to deal such situation is already provided under the Criminal Procedure Code and other relevant laws.”
The bench concluded: “Since the direction contained in this judgment is self-executory, therefore, the operation of this judgment is suspended only for fifteen days, during which the respondents, if so desire, may file appeal in the honourable Supreme Court.”
Nasir Iqbal adds from Islamabad: Lawyers representing Gen Musharraf moved swiftly to seek government’s permission for travelling abroad at the earliest.
“A one-page request under the signatures of Gen Pervez Musharraf is ready and will be filed in the interior ministry on Friday morning to seek the permission,” Advocate Chaudhry Faisal Hussain told Dawn.
Chaudhry Faisal is a member of panel of lawyers defending Gen Musharraf before a three-judge Special Court in a treason case for proclaiming the Nov 3, 2007, emergency.
And the reason shown for such urgency, according to the application, is the deteriorating health of Gen Musharraf’s mother being treated in a UAE hospital.
A medical report of Mrs Zohra Musharraf, who is suffering from heart and respiratory problems, is also attached with the application filed by Gen Musharraf.
Published in Dawn, June 13th, 2014