No record of cabinet's approval over filing of treason case against Musharraf, LHC told

Updated January 10, 2020

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A three-member LHC bench is hearing a set of petitions filed by former president Pervez Musharraf challenging multiple actions against him. — INP/File
A three-member LHC bench is hearing a set of petitions filed by former president Pervez Musharraf challenging multiple actions against him. — INP/File

The Lahore High Court (LHC) on Friday posed questions regarding the legality of the treason case filed against former dictator Pervez Musharraf and the formation of the special court that conducted the trial and handed death sentence to the retired general after finding him guilty.

A three-member bench, comprising Justice Syed Mazahar Ali Akbar Naqvi, Justice Mohammad Ameer Bhatti and Justice Chaudhry Masood Jahangir, was hearing a set of petitions filed by Musharraf challenging multiple actions against him, including conviction in high treason, the establishment of the trial court and filing of the complaint by the government.

Barrister Ali Zafar, who has been appointed as the court's amicus curea in the case, said that the case against Musharraf seemed to have been filed on the behest of the then prime minister, Nawaz Sharif, as there is no record of the matter being on the agenda of any of the cabinet meetings held at the time.

"A case under Article 6 cannot be filed without the cabinet's approval," Barrister Zafar insisted. The court asked if the matter was on the agenda of any cabinet meeting, to which Zafar responded in the negative.

"None of the cabinet meetings were held on the matter," Barrister Zafar said.

"This was history's most important matter; can the cabinet discuss it without it being an agenda item?" the bench asked.

Justice Bhatti pointed out that during a recent case pertaining to the extension and reappointment of the army chief, the strength of the cabinet was discussed.

"But in Pervez Musharraf's case, the cabinet's approval or its role cannot be seen," the judge said. Justice Bhatti was referring to a recent case pertaining to the tenure of the army chief heard by the Supreme Court, where the bench had inquired how many members of the federal cabinet had approved Prime Minister Imran Khan's decision to extend the tenure of Army Chief Gen Qamar Javed Bajwa.

"On June 21, 2013, the attorney general sent a summary to the prime minister that a case be prepared against Pervez Musharraf under Article 6," Barrister Zafar told the court. "The interior secretary was given the authority to file a complaint on December 29, 2013."

"The case that was prepared was not in accordance with the law, neither was the formation of the special court in accordance with the law," Zafar said and added: "The complaint against Pervez Musharraf was not filed by the lawful authority; the law was violated here as well. According to the law, the cabinet has to nominate the relevant authority which would file the complaint."

Justice Naqvi also inquired how the judges who heard the treason case were appointed.

"On what basis were the judges appointed to the special court?" he asked. "Was there a written communication regarding the appointment of judges to the special court or was everything [decided] over the telephone?"

"The Ministry of Law and Justice wrote a letter to the Supreme Court registrar [asking] for names of judges to form the special court [bench]," the counsel for the federal government told the court.

"When the formation of the court [that heard the case] is wrong and illegal then all its steps and decisions will be considered illegal," Zafar said.

The court also discussed the charges levelled against Musharraf and the manner in which the trial was conducted.

"The federal government constituted the special court but did not decide how the criminal proceedings will be held," Barrister Zafar said. "After the 18th Amendment [in] Article 6, it was imperative to amend the 1973 and 1976 laws pertaining to treason."

Zafar said that though a new offence was added in Article 6, its manner of punishment was not decided.

"The charge sheet which was filed does not mention Article 6 at all," Justice Naqvi noted.

"The special court indicted [Musharraf] on the first day the case was heard," Zafar told the court. "The Supreme Court did not define the relation [of the action] with Article 6 but termed it as an unconstitutional step."

Zafar further said that that the trial was conducted in Musharraf's absence.

"If a person is not joining a trial, the court can, at most, declare him a proclaimed offender," Justice Naqvi said and added: "Which law allows punishing a person without hearing them?"

Referring to the special court's verdict, Justice Naqvi said: "Looking at the verdict, everyone who supported [Musharraf] at the time can be accused of abetting."

Barrister Zafar insisted that "no one can commit an Article 6 offence alone", saying that "it would be unconstitutional if proceedings are carried out against selected people."

"Can the special court summon other suspects if the federal government does not name them [in the case]?" asked Justice Jahangir, to which Barrister Zafar responded in the negative.

The court asked the federal government to submit a summary of the formation of the special court and directed the state's lawyer to present arguments on Monday. The hearing was adjourned until Monday.

A special court of Islamabad had on December 17 handed down death penalty to Musharraf with a two to one majority after six years of hearing the treason case against him. The case was filed by the PML-N government in 2013.

Musharraf, in his petition, had asked the LHC to set aside the special court’s verdict for being illegal, without jurisdiction, unconstitutional, in violation of Articles 10-A, 4, 5, 10 and 10-A of the Constitution. He sought suspension of the verdict till the decision of the petition.