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Absence of accused can’t delay treason trial: SC

Updated April 05, 2019

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If Pervez Musharraf fails to appear on the next date of hearing, the special court is empowered to proceed against the accused even in his absence under Section 9 of the Act, says the court's April 1 order. ─ File
If Pervez Musharraf fails to appear on the next date of hearing, the special court is empowered to proceed against the accused even in his absence under Section 9 of the Act, says the court's April 1 order. ─ File

ISLAMABAD: The Supreme Court has asserted there cannot be a more grave offence than high treason and more solemn a proceeding than a trial for high treason before a special court.

“High treason is a constitutional offence,” deplored Justice Syed Mansoor Ali Shah in a five-page order he wrote about the April 1 hearing on the high treason trial of former president retired General Pervez Musharraf.

A bench of the Supreme Court headed by Chief Justice Asif Saeed Khosa is seized with a petition filed by a former president of the Lahore High Court Bar Association, Taufiq Asif, and Sheikh Ehsanuddin that seeks intervention of the apex court as Mr Musharraf’s trial has been stalled.

Being a proclaimed offender, Musharraf has lost his right to audience and has forfeited his right to put up a defence, according to court order

In the order, Justice Shah explained that Article 6 of the Constitution provides that if “a person abrogates or subverts or suspends or holds in abeyance or attempts or conspires to abrogate the Constitution by use of force or show of force or by any other unconstitutional means”, he/she is guilty of high treason.

“The Constitution is the fundamental law of the land which the people of Pakistan, through their representatives in the National Assembly, have adopted, enacted and given to themselves,” he observed, adding that obedience to the Constitution under its Article 5 was the inviolable obligation of every citizen wherever he/she might be.

Justice Shah regretted that a report of the special court’s registrar had painted a “sorry picture” regarding long delays in the trial, pointing out that the complaint against the accused was filed on Dec 12, 2013 before the court, the charge was framed on March 13, 2014 and since then the matter was dragging on due to the general’s absence.

The significance, gravity and solemnity of the proceedings before the special court could not be undermined by delaying the trial due to non-appearance of the accused, the judge wrote.

He also referred to a parliamentary debate on the bill about the Criminal Law (Special Court) Act 1976, which suggested that when the accused was charged with serious offences involving security and sovereignty of the state, it was in Mr Musharraf’s best interest that the case be decided as quickly as possible, particularly if he was innocent.

Referring to Section 9 of the Act, Justice Shah said it envisaged that once the trial began it would not be adjourned by reason of absence of any accused on account of illness.

The section also mandated that the special court would proceed with the trial after taking necessary steps to appoint an advocate to defend any accused person; the provision was therefore an extension of the procedure for trial provided under Section 6 of the Act and supported the purpose of the special law, the judge said.

Within the scope of the Act, if the accused voluntarily chose not to exercise his right to appear it did not infringe on the fairness of the trial, nor did it violate the right to fair trial under Article 10A of the Constitution, Justice Shah wrote.

Thus, to stop further proceedings in this situation would amount to putting a premium on the fault of the absconder, he observed, adding that control over the proceedings could not be allowed to vest in the accused.

In the present circumstances of the case, the accused was not merely absenting himself from attending the proceedings, he had also been declared a proclaimed offender on July 12, 2016.

Being a fugitive from the law, the accused loses his/her right to audience and as a consequence loses the right to have an advocate appointed to defend him/her unless and until he/she surrenders before the court.

Justice Shah said that while Section 342 of the Criminal Procedure Code (CrPC) enabled the accused to explain any circumstances appearing against him in the evidence, in the context of the Act if he voluntarily chose not to appear or join the proceedings he would lose his right to such an explanation.

Similarly, being a proclaimed offender he had lost his right to audience and had forfeited his right to put up a defence.

Thus for these reasons, the special court would proceed with the trial on the next date of hearing. In case the accused appeared before the special court, he would be entitled to record his statement under Section 342 of the CrPC and lead any other defence under the law.

However, in case he failed to appear on the next date of hearing, the special court was empowered to proceed against the accused even in his absence under Section 9 of the Act, the order said.

Published in Dawn, April 5th, 2019