ISLAMABAD: The special court hearing the high treason case against former president retired Gen Pervez Musharraf, in its detailed verdict issued on Thursday, ordered hanging of the former military dictator on five counts and directed action against all “those involved (if any) in facilitation of the escape of the fugitive accused”.

In a strongly worded judgement, the special court head, Peshawar High Court (PHC) Chief Justice Waqar Ahmed Seth, ordered in its paragraph 66: “We direct the Law Enforcement Agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan and be hanged for 03 days.”

However, it turned to be a minority view as the second and third judge did not agree to this. The second judge, Justice Shahid Karim of the Lahore High Court (LHC), concurred with the death sentence awarded by Justice Seth but did not agree to the dragging of the corpse.

Besides, the court observed that the government may initiate high treason proceedings against the then corps commanders committee and those who abetted the imposition of emergency and lamented that “unfortunately the cronies of the accused has been left free till date”.

The third judge, Justice Nazar Akbar of the Sindh High Court (SHC), opposed the majority verdict at all on the ground that there was no constitutional definition for high treason and, hence, no case of high treason is made out.

Detailed verdict in treason case directs action against all ‘those involved in facilitation of the escape of the fugitive accused’

The majority of three-judge court ordered that “the convict be therefore hanged by his neck till he dies on each count as per charge”.

According to the charge sheet, Mr Musharraf was indicted on five charges: imposition of emergency of Nov 3, issuing unlawful Provisional Constitution Order, Oath to the Office (Judges) Order 2007, Order 5 of 2007 for Constitutional (Amendment) Order 2007, Order 6 of 2007 Constitu­tional (Second Amendment) Order 2007.

In the concluding paragraphs, the verdict said: “We are of the considered view that the accused in this high treason case has been afforded more than his due share of fair trial. The protected trial of a constitutional and not any ordinary offence that began six years ago in 2013, has yet to see its end in 2019. The accused who has been given every opportunity to defend himself, has by his conduct in the proceedings only evinced his utter contempt for the law and legal institution in this country.”

The majority judges are of the view that “the trial of the high treason is the requirement of the constitution against those individuals who undermine or attempt of undermine the constitution by any means”.

While discussing successive military takes over since 1958 and its subsequent validation by the superior judiciary, the special court observed, “the infamous ‘Doctrine of necessity’ was introduced by the hon’ble apex court of the country in the case of Moulvi Tameezuddin Khan, which was nourished in the Dosso’s case. In the case of Syed Zafar Ali Shah, this doctrine attained maturity but finally the hon’ble apex court in Syed Yousaf Raza Gillani case, buried their self-endorsed doctrine of necessity, probably forever”.

The verdict said in 2007 Mr Musharraf as chief of the army staff put the constitution in abeyance and the country was brought under the control of armed forces. Resultantly as many as 61 judges of superior judiciary, including the chief justice of Pakistan and chief justices of three provinces, were made dysfunctional.

It said, “it is unbelievable and unimaginable that such an extreme act is committed alone by single man in uniform. The then corps commanders committee in addition to all other uniformed officers who were guarding him each and every time, with boots on, are equally and fully involved in the act and deeds of the accused person…the federal government/complainant is not absolved of not investigating these officers and filing a complaint against them, which they can do at time. If for a moment it is presumed that military high command including corps commanders were not involved then why they failed to defend and protect the constitution.”

It reminded that “each and every member of the armed forces, as per their oath under the 3rd Schedule to the constitution in pursuance to Article 244 is bound to bear true faith and allegiance to Pakistan and uphold the constitution which embodies the will of the people. They have also sworn not to engage themselves in any political activities whatsoever.”

Discussing Article 6, the majority judges said, “Article 6 is the only safeguard for the constitution that deals with an offender who challenges the boundaries of the social contract between the citizen and the state. We believed the quantum of punishment for the act of high treason describes the gravity of this offence and the framers of the constitution inserted Article 6 in the constitution to provide an in build mechanism for its protection.”

“We with the majority of 02 as to 01 allow the complaint and hold the accused guilty of high treason as defined at Article 6 of the constitution and pass punishment under serial 2 High Treason (Punishment) Act, 1973, thus the convict be hanged by his neck till he is dead”, the verdict concludes.

Published in Dawn, December 20th, 2019