ISLAMABAD: The Supreme Court on Tuesday asked Attorney General Salman Aslam Butt to come out with answers of what had been highlighted by former chief justice Abdul Hameed Dogar against implicating his name in the fresh probe in the Musharraf treason trial.

A three-judge Supreme Court bench headed by Justice Mian Saqib Nisar issued notices to the AG after hearing Iftikhar Gillani who is pleading the case of Mr Dogar.

The former chief justice had challenged the Dec 12, 2015, order of the Islamabad High Court (IHC) that had upheld the Nov 27, 2015, direction of the three-man special court hearing treason trial against former president retired Gen Pervez Musharraf that had ordered the investigation team concerned to re-investigate the treason case by ‘interrogating’ Mr Musharraf, former prime minister Shaukat Aziz, former minister Zahid Hamid and Mr Dogar as well as persons who could be presumed to be associated with the commission of alleged crime.

Being aggrieved of the special court order, Mr Dogar through his counsel Iftikhar Gillani instituted a challenge before the IHC with a plea that by issuing directions to investigate him, the special court had assumed a suo motu jurisdiction which has not been conferred upon it, adding the special court through its Nov 27 order had treated him at par with the principal accused (Mr Musharraf) in utter violation of the law and beyond the jurisdiction of the special court.

On Tuesday, Mr Gillani argued before the apex court that neither the high court nor the special court had the jurisdiction under Criminal Law Amendment (Special Court) Act, 1976, to order investigation against the person whose names were not included in the list of accused forwarded by the federal government earlier.

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The special court has a limited jurisdiction as provided in the law and the procedure to be followed during the trial was explicitly mandated in Section 6 of the Act.

The counsel argued that the Supreme Court in its July 31, 2009, judgment had already held that Mr Musharraf was individually responsible for the proclamation of Nov 3, 2007, emergency.

Moreover, there was no material evidence on record to connect Mr Dogar with the alleged crime, he stated, adding the principle of trichotomy of power, as enshrined in the constitution, Mr Dogar as the chief justice had nothing to do with the functioning of the executive.

To allege in the special court order, he emphasised that Mr Dogar would not have been elevated as the chief justice if he had not consented to the issuance of proclamation of emergency and subsequent provisional constitution order (PCO) of 2007 was not only perverse but tantamount to demeaning the stature of the superior courts of Pakistan.

The petition recalled that after the lifting of the emergency and the restoration of the constitution on Dec 15, 2007, all judges of the apex court who had taken oath under PCO (provisional constitution order) took fresh oath under the constitution.

Mr Dogar argued that he continued to function during the emergency period from Nov 3 to Dec 15, 2007 till the time he was retired on March 22, 2009.

Published in Dawn, January 20th, 2016