A special court in Islamabad on Tuesday found former military ruler retired Gen Pervez Musharraf guilty of high treason and handed him a death sentence under Article 6 of the Constitution.
This is the first time in Pakistan's history that a military chief has been declared guilty of high treason and handed a death sentence. The verdict was split 2-1.
Article 6 of the Constitution says: “Any person who abrogates or subverts or suspends or hold in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance the Constitution by use of force or show force or by any other unconstitutional means shall be guilty of high treason."
The punishment for high treason is death or lifetime imprisonment, according to the High Treason (Punishment) Act, 1973.
The three-member bench of the special court — headed by Peshawar High Court Chief Justice Waqar Ahmad Seth and comprising Justice Nazar Akbar of the Sindh High Court (SHC) and Justice Shahid Karim of the LHC — announced the verdict in the long-drawn high treason case against Musharraf after hearing final arguments today. A detailed verdict will be issued in 48 hours.
The former military chief is currently in Dubai in the United Arab Emirates. He was admitted to a hospital following deterioration of his health earlier this month. In a video statement from his hospital bed, he called the treason case "absolutely baseless”. “I have served my country for 10 years. I have fought for my country. This [treason] is the case in which I have not been heard and I have been victimised,” he had stated.
His team can appeal today's verdict in the Supreme Court. If the top court upholds the special court's verdict, the president possesses the constitutional authority under Article 45 to pardon a death row defendant.
The high treason trial of the former military dictator for imposing the state of emergency on Nov 3, 2007, had been pending since December 2013. Musharraf came to power after ousting then-Prime Minister Nawaz Sharif in a 1999 bloodless coup. In an infamous purge in 2007, Musharraf imposed a state of emergency and placed several key judges under house arrest in Islamabad and elsewhere in Pakistan.
He was booked in the treason case in December 2013, when the PML-N government under Nawaz returned to power. 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 to seek medical treatment, promising to come back to his "beloved homeland" in a few weeks.
The special court was reformed six times during the course of the case.
The verdict announced by the special court today was the one it had reserved on November 19.
The special court at that time had said it would announce the verdict 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”.
Subsequently, on November 27, the IHC stopped the special court from issuing its verdict reserved in the case on November 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 and announce the verdict on the same day.
Court displeased with additional petitions
At the outset of today's hearing, the government's prosecutor, Advocate Ali Zia Bajwa, said that they had submitted three petitions today.
One of the petitions asked that the court make three individuals — former prime minister Shaukat Aziz, former Supreme Court chief justice Abdul Hameed Dogar and former law minister Zahid Hamid — suspects in the case.
"We want to make Musharraf's facilitators and companions suspects as well. It it important that the trial of all suspects is held at the same time," the prosecutor said.
"Submitting such a request after three and a half years means the government doesn't have the right intentions. Today the case was set for final arguments and now new petitions have been submitted," remarked Justice Karim.
Justice Akbar questioned the lawyer regarding the evidence against the individuals that the government wanted to include in the case.
"The stage of investigations and [presenting] evidence has passed. Has there been a new investigation against the included suspects?" he asked, in response to which the prosecutor said that an investigation can only be carried out after the complaint is registered.
The prosecutor said that according to a 2014 petition, Shaukat Aziz had told Musharraf to impose emergency.
Justice Akbar remarked that the prosecutor was referring to Musharraf's petition in which the verdict has been reserved while Justice Karim added that the Supreme Court has also issued a verdict on a petition regarding other suspects.
Justice Akbar said two weeks had been earlier granted to the government to present a modified charge sheet. "As per the law, charged can be amended anytime before the verdict," responded the prosecutor.
"If you want to further make anyone a suspect, submit a new case," said Justice Karim, asking: "Does the government want to delay Musharraf's trial?"
"If three individuals are made suspects, the government should also submit requests to make the former cabinet and corps commanders suspects," he added.
Justice Karim said that without the court's permission, indictments cannot be amended. Justice Akbar added that no formal request had been received by the court for changes to the charge sheet.
"Without the court's permission, no new request can be submitted," said Justice Karim, adding: "We will not hear arguments on a request that was not formally submitted."
"The prosecution doesn't even know how to submit a request in the court," remarked Justice Akbar, at which the prosecutor apologised. "Your purpose was just to get through today," the judge noted.
Justice Karim asked how the interior secretary can amend the charge sheet without the approval of the cabinet. "Where is the approval of the federal government and the cabinet? According to a Supreme Court verdict, the federal government means the cabinet," he said.
He added that if the government doesn't want there to be a delay, it can submit a new request against the other suspects.
A second prosecutor, Munir Bhatti, said the former prosecutor had hidden facts from the court. 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.
"What action has the government taken against the former prosecutor?" asked Justice Akbar.
Justice Karim said with regards to the federal government, the apex court has issued directives in the Mustafa Impex case. "After the Supreme Court's directive is issued, the federal cabinet can make a decision, not the interior secretary," he said.
In the Mustafa Impex case, the Supreme Court had ultimately struck down notifications which were not issued with the approval of the cabinet.
It is pertinent to mention that the special court last month had also reserved its verdict in the long-drawn high treason case. However, an Islamabad High Court (IHC) order on November 27 — a day before the special court was set to announce its verdict — stopped the special court from doing so after the Pakistan Tehreek-i-Insaf (PTI) government sought deferment of the announcement of the verdict.
Request to record Musharraf's statement
Musharraf's counsel Advocate Raza Bashir said he had submitted a request to record his client's statement via Section 342 of the CrPC, adding that his client should be given the right to a fair trial.
"Supreme Court had ended the right to record his statement via Section 342," Justice Akbar responded, adding that the former president had wasted six opportunities to record his statement via the CrPC.
"Musharraf should get a right to defend," said Bashir.
"You and the prosecution are serving as his defence," remarked Justice Akbar, noting that the court had said Musharraf could be presented at anytime.
Musharraf's counsel said his client's health was not well enough for him to appear before the court.
"How can I defend Musharraf without Section 342 statement?" he asked.
Justice Seth said that if he is unable to defend his client, it means that his arguments have concluded.
Bashir asked for 15 to 20 days to get Musharraf's statements recorded.
Justice Seth said that they will review the petition for the formation of the commission to record Musharraf's statements via Section 342, and then the judges left the courtroom for their chambers.
LHC recommends full bench hear Musharraf's petition
Earlier in the day, the Lahore High Court (LHC) took up Musharraf's petition against the special court hearing the high treason case against him as well as his civil miscellaneous application that urged the high court to halt the treason proceedings.
Justice Syed Mazahar Akbar Ali Naqvi sent the file regarding Musharraf's case to the high court chief justice, recommending that a full bench be formed.
On Monday, the LHC issued a notice to the federal government to submit a written reply on Musharraf's application in which he 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 court had decided that it would hear the application today alongside the main petition submitted against the treason case proceedings.
During today's proceedings, Additional Attorney General Chaudhry Ishtiaq A. Khan appeared in court on the government's behalf while Khawaja Ahmad Tariq Raheem and Azhar Siddique represented Musharraf.
The court asked how the LHC could hear the petitions if the petitioner is a resident of Islamabad and asked for an example of another case on the basis of which the high court could hear the petition. Musharraf's counsel Siddique said this had been done in the LNG case.
The court also asked if the high treason case against Musharraf would be heard in Islamabad today, in response to which AAG Khan said the special court will hear the high treason case and has also said it will announce the verdict today.
"Till the suspect's statement is not recorded under Section 342 [of the Criminal Procedure Code], how can that happen?" the judge asked.
On Saturday, in an application filed through advocates Khawaja Ahmad Tariq Raheem and Azhar Siddique, Musharraf had 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.
IHC verdict binding on special court
After the IHC had halted the special court from delivering its judgement last month, the members of the three-judge court were of the view 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.