LAHORE: The Lahore High Court was informed on Friday that Section 9 of the Criminal Law Amendment (Special Court) Act, 1976 under which trial in absentia of former president retired Gen Pervez Mush­arraf took place is violative of Article 10-A of the Constitution which provides that every person is entitled to a fair trial.

“If Section 9 is declared ultra vires then that will have consequences on final outcome of the judgement passed by the special court,” said Barrister Ali Zafar, who is assisting an LHC full bench as amicus curiae.

The bench is seized with a petition filed by Gen Musharraf challenging multiple actions against him, including conviction in the high treason case, establishment of the special court and filing of a complaint by the federal government.

At a previous hearing, the bench headed by Justice Syed Mazahar Ali Akbar Naqvi had appointed Barrister Zafar as amicus curiae in the case seeking his assistance on law points raised in the petition.

Full bench summons summary about formation of special court that convicted former military ruler

The lawyer argued that the trial in absentia was abhorrent to the criminal justice system under the Pakistani law, adding that the offence of high treason had been created under Article 6 of the Constitution but it did not provide for any punishment, leaving it to parliament to enact law for this purpose.

Barrister Zafar said that under the law it was the federal government which was required to decide whether or not to file a complaint, constitute a special court and authorise a person to file a complaint in the court.

He explained that after the 18th Constitution Amendment in 2010, the federal government had been defined as the “prime minister” and the “cabinet”, which meant that any act which had to be done under any law by the federal government must be through a decision by the prime minister and the cabinet, otherwise, it was unlawful.

Barrister Zafar pointed out that there had been no cabinet decision to institute proceedings against Gen Musharraf for high treason, nor for the constitution of the special court or authorising a person for filing a complaint.

He said the record showed that the notification for formation of the special court had been issued by the law ministry without any cabinet decision. However, he said, as per the notification the special court was formed in consultation with the then chief justice of Pakistan who had no role, under the law, in the constitution of the trial court.

Barrister Zafar argued that the constitution of the special court was illegal and, as such, all steps taken by it, including the conviction of Gen Musharraf, were unlawful and void ab initio. He argued that the offence for which the former president had been charged was not an offence till the amendment to Article 6 of the Constitution through the 18th Amendment in 2010. Referring to Article 12, he said the government had no jurisdiction to invoke provisions of the high treason law retrospectively.

Barrister Zafar argued that the offence of high treason was always a joint offence as one person could not be deemed to have committed any abrogation or subversion of the Constitution.

Justice Naqvi observed that the charge sheet against Gen Musharraf did not carry the charge of high treason. He said punishment of an accused without his statement under Section 342 of CrPC was alien to criminal law.

To a court’s query, Barrister Zafar said the trial court had no jurisdiction to direct the government for a change in the complaint to include other suspects as well.

As the lawyer concluded his arguments, the bench adjourned the hearing to Jan 13 and directed Additional Attorney General Ishtiaq A. Khan to furnish summary about the formation of the special court and other relevant records.

Published in Dawn, January 11th, 2020