IHC says its order in Musharraf case binding on special court

Updated 04 Dec 2019

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The Islamabad High Court (IHC) has ruled that its order of stopping the special court from announcing its verdict in the treason case against former military ruler retired Gen Pervez Musharraf is binding on it regardless of the fact it comprises judges of three high courts. — AFP/File
The Islamabad High Court (IHC) has ruled that its order of stopping the special court from announcing its verdict in the treason case against former military ruler retired Gen Pervez Musharraf is binding on it regardless of the fact it comprises judges of three high courts. — AFP/File

ISLAMABAD: The Islamabad High Court (IHC) has ruled that its order of stopping the special court from announcing its verdict in the treason case against former military ruler retired Gen Pervez Musharraf is binding on it regardless of the fact it comprises judges of three high courts.

The three-judge special court is comprised of Peshawar High Court (PHC) Chief Justice Waqar Ahmed Seth, Justice Nazar Akbar of the Sindh High Court and Justice Shahid Karim of the Lahore High Court.

On Nov 27, an IHC full bench comprising Chief Justice Athar Minallah, Justice Aamer Farooq and Justice Mohsin Akhtar Kayani allowing identical petitions of the Ministry of Interior and Mr Musharraf had stopped the special court from announcing its verdict in the high treason case. The IHC also asked the special court to allow Barrister Sal­man Safdar, counsel for Mr Musha­rraf, to argue as defence counsel.

Though in the written order the special court observed that it would not comment on the maintainability of the IHC order, the members of the three-judge court were of the view at the last hearing of the case that the IHC’s order was not binding on them.

The IHC in its order said: “While entertaining these petitions which create an extraordinary situation, we were mindful of the fact that the learned Special Court established under the Act of 1976 comprises three Hon’ble Judges of the High Court. The petitioners have invoked the jurisdiction of this Court under Article 199 of the Constitution while, with great respect, the learned Special Court is the creation of the Act of 1976 and its Hon’ble members are not sitting as Judges of the High Court but as persona designate in view of the law laid down by the august Supreme Court.”

The IHC in the written order states: “A plain reading of the Act of 1976 [The Criminal Law Amendment (Special Court) Act] unambiguously shows that the Federal Government and the prosecution have a pivotal role. The trial proceedings under the Act of 1976, from initiation till conclusion, are dependent on the presence of the prosecution appointed by the Federal Government…The Special Court cannot, therefore, pronounce the judgement without affording a reasonable opportunity of hearing to the appointed prosecutor.”

According to the IHC order, the Act of 1976 reads as a whole unequivocally makes it obvious that the trial proceedings are entirely dependent on the prosecution and that in its absence or without hearing it, judgement cannot be announced.

Published in Dawn, December 4th, 2019