ISLAMABAD: The Supreme Court of Pakistan on Friday admitted appeals against the acquittal of former military dictator retired General Pervez Musharraf in the high treason case.
A four-member bench of the Supreme Court comprising Chief Justice of Pakistan (CJP) Qazi Faez Isa, Justice Syed Mansoor Ali Shah, Justice Aminuddin Khan and Justice Athar Minallah took up appeals filed against the Lahore High Court (LHC) judgement of January 13, 2020, in which the bench, headed by Justice Mazahar Ali Akbar Naqvi, had declared the Special Court seized with the treason case as unconstitutional.
The bench, in addition to Justice Naqvi, also comprised Justice Mohammad Ameer Bhatti and Justice Mohammad Masood Jahangir. It had declared unconstitutional all actions taken by the PML-N government against the former military ruler, including the filing of a complaint on high treason charge and the formation of a special court as well as its proceedings, leading to the abolition of the death penalty handed down to him by the trial court on Dec 17, 2019.
The LHC bench also set aside Section 9 of Criminal Law Amendment (Special Court) Act, 1976 for being violative to fundamental rights and ruled against retrospective effect given to an amendment in Article 6 of the Constitution, which deals with high treason.
CJP wonders why appeals have not been fixed for hearing in past three years
The Special Court comprising Peshawar High Court Chief Justice Waqar Ahmed Seth, Justice Nazar Akbar of the Sindh High Court and Justice Shahid Karim of the Lahore High Court had awarded death sentence to retired Gen Musharraf with a majority decision of two to one.
The counsel in this matter including Vice Chairman of Pakistan Bar Council (PBC) Haroon ur Rashid, senior counsel Hamid Khan, Rashid A. Rizvi and others primarily challenged the LHC’s decision for having “no legal or territorial jurisdiction, corum non judice (not before a judge), the high court’s exercise of SC’s powers and the maintainability of Gen Musharraf’s petition filed before the LHC”.
CJP Isa wondered why the appeals were not fixed before any bench for hearing since 2020.
During the preliminary arguments, the counsel pointed out that the Special Court was formed by the federal government, it conducted the trial proceedings in Islamabad and a judgment was also announced in the federal capital. He also said the LHC could not assume the jurisdiction in this matter.
It was also stated before the apex court that the LHC, in this particular case, assumed those powers exclusively vested in the Supreme Court.
Advocate Hamid Khan argued that the LHC verdict was without jurisdiction and contradictory to provisions of the Special Court Law.
Advocate Rashid pointed out that Gen Musharraf filed the appeal before the LHC under Article 199 of the Constitution and since the matter was pertained to the territorial jurisdiction of the Islamabad High Court (IHC), therefore, the petition was not maintainable.
The counsel argued that lawyers as well as their elected bodies, including the bar councils and the bar associations, were under obligation to challenge the miscarriage of justice.
The bench asked Barrister Salman Safdar, counsel of Gen Musharraf, to get instructions from his legal heirs as to whether they intend to pursue the case.
At the outset, Barrister Safdar requested the bench not to involve him in the matter.
However, when the bench adjourned the hearing for a week, Barrister Safdar requested for an adjournment till a fortnight saying that he would need ample time to get instructions.
He informed the bench that the son and daughter of the deceased former military ruler are living abroad and his widow is living in Pakistan.
Justice Isa remarked that he could get instructions via WhatsApp or through a phone call.
Further hearing in the case was adjourned till Nov 21.
Published in Dawn, November 11th, 2023
