Absence of prosecution team in Musharraf case no hurdle in way of verdict: ex-lead prosecutor

Updated October 26, 2019

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the defence team of retired Gen Pervez Musharraf as well as the prosecution had adequately been heard not only orally but also by written arguments. — AFP/File
the defence team of retired Gen Pervez Musharraf as well as the prosecution had adequately been heard not only orally but also by written arguments. — AFP/File

ISLAMABAD: Advocate Mohammad Akram Sheikh, the former head of the prosecution team appointed to prosecute former president and army chief retired Gen Pervez Musharraf, said on Friday that the special court was not denuded of its authority to pronounce a judgement despite withdrawal of the prosecution team in the high treason case.

Mr Sheikh was reacting to the federal government’s decision to withdraw the entire prosecution team engaged by the previous Pakistan Muslim League-Nawaz (PML-N) government to prosecute Mr Musharraf for abrogating and subverting the Constitution by proclaiming Nov 3, 2007 emergency.

Earlier the special court had allowed Mr Sheikh to recuse as the prosecution head on Aug 28, 2018 on an application he moved soon after the formation of the PTI government.

The prosecution, the senior counsel commented while talking to Dawn, had already concluded its case as back as Sept 18, 2014. Even the outgoing prosecution team had submitted their written arguments on the earlier date and the case was fixed for Oct 24 only for a ceremonial hearing of verbal submissions, if any, required by the court, he recalled.

Reacting to govt’s decision of withdrawing prosecution team, Akram Sheikh says prosecutors have already done their job

Moreover, the Special Court Amendment Act, 1976, does not provide any formality after conclusion of the prosecution case and the judges comprising the special court were absolutely within their power and competence to announce their judgement, the counsel suggested.

In this case, the defence team of Mr Musharraf as well as the prosecution had adequately been heard not only orally but also by written arguments, he said.

It is, therefore, under no obligation to adjourn the case besides the court is fully competent to pronounce its judgement on the merits of the case as had been concluded by evidence of the witnesses and cross-examined at length by the counsel for Mr Musharraf, he said.

During the lengthy period of five years and ten months while this case was hanging in fire, the prosecution as well as the interior ministry, as it then comprised, brought the issue of withdrawal of the prosecution, examined by reputable experts but came to the conclusion that since the amended Article 6(2) of the constitution includes aides and abettors, the act of the withdrawal of the complaint may not fall within its mischief.

In his view, the event of Oct 24 was a sad day in the constitutional and judicial history of Pakistan, since the completed trial of the high treason despite repeated assurances by the highest judicial and executive echelons could not see its meritorious conclusion and had to be technically knocked out by withdrawing the prosecution team, he regretted.

Another important feature of this case is that Mr Musharraf was allowed to leave Pakistan on March 16, 2015 to be operated upon in the United Arab Emirates for his back pain as he was in a very precarious condition and the five-judge Supreme Court bench headed by then chief justice Anwar Zaheer Jamali allowed the petition permitting Mr Musharraf to have his treatment abroad.

Mr Sheikh emphasised that the rule of law, equal protection of law and separation of power were not the cornerstones of our democratic polity without which neither democracy nor the country could envision a greater and a brighter future.

His point of view was also supported by Pakistan Bar Council (PBC) vice chairman Syed Amjad Shah who alleged that the withdrawal of the prosecution team in the treason case in fact was a tester to vouch for the reaction of people.

Eventually the federal government is going to withdraw the complaint before the special court, he feared, adding that in case of such a situation, the bar councils of the country will resist with full force and will also launch a joint countrywide campaign to aware people of this country what had been transpired since Mr Musharraf had abrogated the constitution — an act not pardonable at any cost.

The outgoing president of the Supreme Court Bar Association, Amanullah Kanrani, however, said that the withdrawal of the prosecution team was something between the client and the counsel.

This is the discretion of the client to engage or disengage any counsel any time in the exercise of his preference, he said, adding whatever the circumstances may be, legally the government can withdraw the prosecution team at any time for their own reasons.

Published in Dawn, October 26th, 2019