The Lahore High Court on Monday issued a notice to the federal government on former military ruler Pervez Musharraf's miscellaneous application urging the high court to stay the high treason case proceedings pending before a special court in Islamabad.
Musharraf in his application has asked the high court to declare the proceedings pending before the special court and all actions against him — from initiation of the high treason complaint to the appointment of the prosecutor and constitution of the trial court — as unconstitutional.
The three-member special court is expected to announce its verdict in the long-drawn high treason case tomorrow (December 17), despite an earlier Islamabad High Court (IHC) order stopping the special court from issuing the verdict it had reserved in the case last month.
The IHC's order had come on November 27 — a day before the special court was set to announce its verdict.
On Saturday, in an application filed through advocates Khawaja Ahmad Tariq Raheem and Azhar Siddique, Musharraf asked the LHC to stay the trial at the special court until his earlier petition pending adjudication by the high court is decided. In that petition, the former dictator had challenged the formation of a special court holding his trial under charges of high treason and legal flaws committed in the procedure.
The application urged the high court to immediately suspend all actions, including the filing of the complaint, submission of a challan, the appointment of a prosecution team and constitution of the trial court.
During today's proceedings, Justice Syed Mazahar Akbar Ali Naqvi asked why the second application was submitted if another petition by Musharraf was already being heard in the LHC. Siddique, Musharraf's counsel, said this was a miscellaneous application.
"Would it be reasonable to form a full bench to hear Musharraf's petitions?" asked Justice Naqvi, in response to which Siddique and the government lawyer said the court had nearly heard the entire matter and there was no need to form a full bench.
Issuing a notice to the federal government on Musharraf's application for tomorrow, the court decided to hear it alongside the main petition set for hearing in the LHC on Tuesday.
The high treason trial of the former military dictator for clamping the state of emergency on Nov 3, 2007, has been pending since December 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.
Special court verdict halted
In October, the special court was informed that the government had sacked the entire prosecution team engaged by the previous PML-N government to prosecute the high treason case against Musharraf.
The special court — comprising Chief Justice of the Peshawar High Court (PHC) Waqar Seth, Justice Nazar Akbar of the Sindh High Court (SHC) and Justice Shahid Karim of the LHC — had on November 19 reserved the judgement in the case. The court said the verdict would be announced on Nov 28 on the basis of available record.
However, days before the final verdict was to be announced, the Pakistan Tehreek-i-Insaf (PTI) government sought deferment of the announcement of the verdict and in a fresh petition, requested the Islamabad High Court that “the special court be restrained from passing final judgement in the trial”.
The government petition was filed by the interior ministry through the additional attorney general.
Subsequently, on November 27, the IHC stopped the special court from issuing its verdict reserved in the case on Nov 19. Additionally, they directed the government to notify a prosecution team by December 5.
On December 5, the new prosecution team for the government appeared before the special court after which the special court adjourned proceedings till December 17, adding that it would hear arguments in the next proceeding and announce the verdict.
IHC verdict binding on special court
The special court had observed that while 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, however, ruled that its order of stopping the special court from announcing its verdict in the treason case was binding on it (special court) regardless of the fact that it comprises three high court judges.
The IHC in the written order stated: “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.