LAHORE/ISLAMABAD: The Lahore High Court on Tuesday admitted for hearing a petition filed by former military ruler retired Gen Pervez Musharraf against a verdict reserved by the special court in the high treason case against him and sought a summary about the formation of the trial court.

The Islamabad High Court also summoned the record relating to establishment of the special court and appointment of its judges.

Justice Syed Mazhar Ali Akbar Naqvi of the LHC overruled the registrar office’s objection over the maintainability of the petition before admitting it for regular hearing.

The registrar’s office had declared Gen Musharraf’s petition not maintainable on the ground of territorial jurisdiction as he was a resident of Islamabad.

Justice Naqvi also sought assistance of the attorney general in the matter and directed the federal law ministry to furnish the summary about the formation of the special court that had reserved its verdict in the high treason case against the former president on Nov 19 and is likely to pronounce it on Nov 28.

Justice Naqvi adjour­ned the hearing till Nov 28.

During the hearing, the judge referred to media reports and asked Advocate Khwaja Tariq Rahim, the counsel for Gen Musharraf, if there was an identical petition filed in the Islamabad High Court.

The counsel said it was the interior ministry which moved the IHC.

Justice Naqvi further asked the counsel as to why the petitioner did not become a party in a review petition filed by a bar pending before the Supreme Court. There was also an SC directive for the special court in that review petition, he added.

However, the counsel insisted that the LHC should hear the matter as the decision of the special court would affect Mr Musharraf whenever he returned to the country. He argued that the trial court had not been constituted lawfully as mandatory approval from the federal cabinet had not been sought. He urged the court to summon the summary from the law ministry regarding the constitution of the trial court.

To a court’s query, the counsel said Gen Musharraf had left the country on the trial court’s permission.

The petition stated that Gen Musharraf was unable to return to Pakistan due to his medical condition while the special court declared him a proclaimed offender on June 19, 2016 and also seized his family property. It said the trial did not continue for two years till Sept 10, 2018, when the special court reconvened the proceedings on a day-to-day basis in the absence of the accused [Gen Musharraf].

The petition requested the high court to grant an injunctive relief to Mr Musharraf and suspend the special court’s decision, besides staying the trial in absentia until his physical appearance before it.

The petition said Gen Musharraf should be allowed to lead evidence in his defence and to provide answers to the questions already prepared for him by the special court. It sought a directive for the special court to decide a pending application under Section 265-K of the Code of Criminal Procedure for his acquittal at the earliest.

IHC hearing

The Islamabad High Court directed the law ministry to furnish the record relating to establishment of the special court. The directive was issued by an IHC full bench comprising Chief Justice Athar Minallah, Justice Aamer Farooq and Justice Mohsin Akhtar Kayani during the hearing of identical petitions filed by the interior ministry and the counsel for Gen Musharraf.

Additional Attorney General (AAG) Tariq Mehmood Khokhar did not argue the petition because of his other engagements.

Sajid Ilyas Bhatti, another AAG, represented the interior ministry and requested the court to give him some time for preparation as he was not aware of the facts of the case.

During the course of hearing, the court pointed out paragraph 16 of the interior ministry’s petition that states that “on perusal of the documents it is apparent that neither the complaint was filed through an authorised person nor was the special court formed properly, as it was only federal government which could have done so, as interpreted in the case of Mustafa Impex”.

In the Mustafa Impex case, the Supreme Court had in 2016 made it clear that the prime minister could not exercise his authority without the cabinet’s approval.

When the IHC bench asked AAG Bhatti if the government had notified the special court in the gazette or otherwise, he said that since he was asked to appear before the court only on half-an-hour notice, he was not aware of the facts of the case.

Subsequently, the court summoned the relevant record from the law secretary.

The court did not hear arguments of Barrister Salman Safdar, the counsel for Gen Musharraf. When he argued that his fundamental rights had been infringed as the special court had barred him from representing his client, Justice Minallah observed that “this court has consistent view that an absconder could not be represented”. He said the right of lawyer could not be violated because of the absconding of the client.

The court adjourned the hearing till Wednesday (today).

In the petition, the interior ministry contended that the prosecution team had been appointed in an arbitrary manner while its head Mohammad Akram Sheikh had resigned “unilaterally” despite the fact that the ministry wanted him to conclude the case. According to it, the prosecution team was removed after loopholes were revealed in the case; however, they had submitted written arguments to the court without any authorisation of the ministry.

The petition argued that there might be some other accused in the case who had abetted Gen Musharraf in the imposition of Nov 3, 2007 emergency, but he was singled out and facing solo trial.

The former president left the country in March 2016 after the interior ministry removed his name from the Exit Control List, letting him to travel abroad on medical grounds. However, he failed to return to face the process of law and the trial court finally declared him a proclaimed offender.

The Pakistan Tehreek-i-Insaf government had on Oct 24 denotified the prosecution team in the high treason case against Gen Musharraf. Former federal law minister Dr Farogh Nasim and incumbent Attorney General Anwar Mansoor Khan represented the former military ruler in the case.

Published in Dawn, November 27th, 2019