IHC stops special court from announcing verdict in Musharraf treason case

Updated 27 Nov 2019

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The Islamabad High Court (IHC) on Wednesday reserved its verdict on petitions filed by former president retired Gen Pervez Musharraf and the interior ministry.
 — AFP/File
The Islamabad High Court (IHC) on Wednesday reserved its verdict on petitions filed by former president retired Gen Pervez Musharraf and the interior ministry. — AFP/File

A day before a special court was set to announce its judgement in the long-drawn high treason case against former president retired Gen Pervez Musharraf, the Islamabad High Court (IHC) on Wednesday stopped it from issuing the verdict.

The IHC order came on a petition filed by the interior ministry which had requested it to set aside the special court's decision to announce its judgement in the high treason case on November 28.

The IHC accepted the ministry's petition and barred the special court from announcing the verdict. A similar petition filed by Musharraf's lawyer was disposed of with the court issuing directions on it.

"For reasons to be recorded later, we allow writ petition [...] filed by the Ministry of Interior," the court said in its short order, setting aside the special court's Nov 19 decision to reserve its judgement in the case.

The IHC has directed the federal government to notify a new prosecutor or a team of prosecution in the treason case by December 5. In addition, the special court has been ordered to fix a date "for affording a reasonable opportunity of hearing" to the notified prosecutor or prosecution team as well as the counsel appointed for Musharraf.

According to the short order, the special court is also "expected to take into consideration" the grounds raised in an application filed by Musharraf seeking his acquittal in the high treason case.

"The learned special court is expected to conclude the proceedings expeditiously having [regard] to the cardinal principles of fair trial," the order reads.

The IHC has also allowed Musharraf's counsel Barrister Salman Safdar to assist the counsel appointed for the former military ruler during the hearing, if he so wishes.

The court had earlier today reserved its verdict on both Musharraf and the interior ministry's petitions.

The special court had on November 19 concluded the trial proceedings in the high treason case against Musharraf for declaring a state of emergency on November 3, 2007, and had ruled that a verdict would be announced on November 28 (tomorrow) on the basis of the available record.

The three-judge court, headed by Peshawar High Court Chief Justice Waqar Ahmed Seth, had observed that the prosecution team before being sacked had submitted detailed arguments which were sufficient to understand their point of view. The incumbent PTI government had denotified the entire prosecution team in the high treason case on Oct 23.

Court grills govt lawyer

During today's proceedings, a three-member larger bench of the court — comprising IHC Chief Justice Athar Minallah, Justice Aamer Farooq and Justice Mohsin Akhtar Kayani — asked Musharraf's lawyer Salman Safdar to sit down as they were going to first hear the petition filed by the interior ministry.

"Is there an official notification about the formation of the special court?" Justice Minallah asked the government's lawyer, Additional Attorney General (AAG) Sajid Ilyas Bhatti, as the hearing began.

Bhatti responded in the affirmative.

The high court chief justice asked where Law Secretary Muhammad Khashih-ur-Rehman was. On Tuesday, the IHC had summoned the relevant record from the law secretary.

During today's hearing, when told that Rehman was not present, the court expressed its displeasure. He was told to appear within half an hour along with the required record.

When he arrived, the court expressed its displeasure.

"This is your attitude. The case starts at 12:30pm and you arrive at 1:30pm," remarked Justice Farooq.

Justice Minallah said as per the record, the special court had been formed correctly and enquired why the interior ministry had written that it was formed incorrectly in its petition.

"Our case is that the prosecution team that presented the final arguments is not legal," responded AAG Bhatti.

"You made a mistake and you will fix it. So what should we do?" asked Justice Farooq, adding: "You didn't tell the special court all of this. Now that the verdict is about to be announced, you've come here."

Justice Minallah remarked that the complexity in Musharraf's case is that although he is an absconder, the court still has to ensure the requirements of a fair trial are met.

Justice Farooq observed that after the resignation of the prosecution team's head, the government had not appointed his replacement for a year. "This can only mean that you do not want to run the case against Musharraf," Justice Kayani told the government lawyer.

When grilled over the date the prosecution team was denotified and the hearing of the special court that followed, the AAG argued that the special court did not give the government the chance to appoint a new prosecution team.

AAG Bhatti said the government will be subjected to ridicule if "technical issues" cause the special court to rule in Musharraf's favour.

Meanwhile, Musharraf's counsel Barrister Safdar told the court that he had filed the application in his personal capacity, and not on behalf of the former president.

He questioned why he was not allowed to defend Musharraf even though he was assigned a government lawyer despite being an absconder.

Justice Farooq asked the lawyer whether the special court had given Musharraf the option to record his statement via video link.

Safdar said although Musharraf was given this option, he opted not to avail it. "Musharraf is ill and is not in a position to record his statement on Skype," the lawyer added.

The IHC subsequently reserved its verdict on the petitions.

Interior ministry petitions IHC

In a surprise move, the Pakistan Tehreek-i-Insaf (PTI) government had on Monday come in aid of Musharraf, seeking deferment of the announcement of the verdict in the high treason case.

In a fresh petition that was interestingly identical to an application filed by Musharraf’s lawyer, the PTI government even 'disowned' the complaint filed by the previous government against him under Article 6 (High Treason) and requested the IHC that "the special court be restrained from passing final judgement in the trial".

In the petition filed through its secretary in the IHC, the interior ministry stated that the special court's decision to reserve its verdict in the case is in violation of the Constitution because it was issued without giving the ministry the opportunity to notify a new prosecution team in the case and because the judgement is set to be passed without hearing the prosecution during the trial.

Gen Musharraf, who has already been declared an absconder, and the incumbent government separately submitted identical petitions before the IHC to stop the special court from pronouncing the verdict.

The government petition was filed by the interior ministry through the additional attorney general.

High treason case

The high treason trial of the former military dictator for clamping the state of emergency on Nov 3, 2007, filed during the PML-N government, has been pending since 2013.

He was booked in the treason case in December 2013. Musharraf was indicted on March 31, 2014, and the prosecution had tabled the entire evidence before the special court in September the same year. However, due to litigation at appellate forums, the trial of the former military dictator lingered on and he left Pakistan in March 2016 with the nod of superior courts as well as the interior ministry.

Since then he has been an absconder in the case.