LAHORE, May 9: The chief justice of the Lahore High Court on Friday pointed out to a petitioner seeking trial of President Gen Musharraf on high treason charges under Article 6 of the 1973 Constitution that the appropriate authority to be approached in this regard was the prime minister.

The petitioner was however cautioned by CJ Iftikhar Hussain Chaudhry that these remarks should neither be treated as advice nor even a formal observation but only as a preliminary assessment.

“Since Section 3 of the High Treason (Punishment) Act 1973 requires that a person complaining about high treason be authorised by the federal government for filing a complaint, it is the prime minister only to whom the matter can be referred, who being the country’s chief executive heads the federal government,” the CJ remarked.

The petitioner, Pakistan Lawyers Forum (PLF) president A.K. Dogar, however submitted that he would not mind treating these remarks as advice. “We are all part of judicial system and would consider every observation and remark of this court in good faith,” he said. The petitioner hinted at withdrawal of the petition in case the PLF, after deliberations, came to the conclusion that it should approach Prime Minister Mir Zafarullah Jamali in this connection.

The court was requested to allow time to the PLF, till May 12, for holding consultations to arrive at a decision as to whether it should approach the prime minister.

The CJ put off the hearing till Monday.

In response to the arguments advanced by Mr Dogar regarding maintainability of the petition, the CJ observed that under Article 199 of the Constitution, courts did not have the power to try anybody on high treason charges.

Earlier, at the start of proceedings, the court placed the proposition before the petitioner as to whether a high court had been authorised by Article 6 of the 1973 Constitution to try a person on high treason charges. “The question regarding the maintainability of this petition is to be decided first, otherwise it would be a futile exercise to proceed further,” the CJ observed.

The petitioner responded to this query with the argument that both the Supreme Court and high courts were fully authorised to take cognizance of any matter placed before them through petitions. He further contended that in Zulfiqar Ali Bhutto Case, the SC had clearly held that a prime minister could be tried by a court of law for committing acts contravening the Constitution. “The same judgment holds good for the president and the governors as well and is binding on this court as well,” he argued. According to the petitioner, the High Treason (Punishment) Act 1973, was enforced retrospectively, from 1956, and he could even question the actions of former military rulers Ayub Khan, Yahya Khan and Ziaul Haq under this act.

“Unlike Section 3 of the 1973 act, Article 6 of the Constitution does not invoke the compulsion of authorisation by the federal government. Since the 1973 act is subservient to the 1973 Constitution, provisions of the latter have overriding power,” the petitioner argued.

As alleged by him, Gen Musharraf had made a clear show of power at a recent press conference saying that for the time being he would continue to hold the offices of COAS and president simultaneously.

Such an announcement on his part, according to the petitioner, was a violation of the Supreme Court judgments in Zafar Ali Shah and Wasim Sajjad cases, which had made it binding on Gen Musharraf to relinquish his civil powers by Oct 2002 and hand them over to a civilian government. However, the president was still clinging to the throne and had publicly made clear his intentions that he would not relinquish either of the office, “which amounted to treachery”, the petitioner claimed.

The LHC office had objected to this petition twice before it finally came up for hearing in the court. As mentioned by the office in its note, under Article 248 of the Constitution, the actions of a president could not be questioned before the court, and the petition was not maintainable. However, the petition was finally placed before the court when the petitioner insisted that the LHC office did not have the jurisdiction to assume powers of the court and raise objections on it.