IHC rejects special court’s order to include co-accused

ISLAMABAD: A division bench of the Islamabad High Court (IHC) here on Tuesday through a detailed judgment set aside the November 21, 2014 order of the special court where it had directed the federal government to include the names of Zahid Hamid, Abdul Hameed Dogar and Shaukat Aziz as abettors in General Musharraf’s act of imposing emergency.
In this nine-page judgment, Justice Noorul Haq Qureshi and Justice Aamir Farooq severely admonished the federal government and its Federal Investigation Agency (FIA) for poor investigation and directed it for re-investigation. Moreover, the court reminded the investigation agency of the consequences it could face for willful negligence in conducting the investigation.
The IHC bench was hearing writ petitions of former federal minister for science & technology Zahid Hamid who was Musharraf’s law minister in 2007, former chief justice of Pakistan Abdul Hameed Dogar and former prime minister Shaukat Aziz.
All the three had challenged the special court’s order dated November 21, 2014 where it, by a majority decision, had directed the federal government to include more names as abettors. All the three had contended before the court that the special court had gone beyond its jurisdiction. It had no powers to nominate other accused persons in this matter and under the laws it had to see the federal government’s complaint that was only filed against General (retd) Pervez Musharraf. In the instant matter, only the federal government has the powers to nominate the accused they had further adopted, they said.
The Tuesday’s judgment has also disposed of inter-court appeals of General Musharraf by saying that these now had become infructuous. Musharraf, through three intra-court appeals, had adopted before the court that if this case had to be tried in a special court, more names were also to be included thereof.
The four appellants, including Musharraf, had also been praying before the IHC for expunction of remarks that the special court had passed against them.
The IHC bench to this extent noted in its judgment: “The parties to the present litigation shall not be prejudiced by the impugned order or any adverse view drawn therein. Likewise, the investigation officer, investigation agency or joint investigation team whatever the case may be shall not be influenced by such observations made in the impugned order.”
Regarding the defective investigation, the IHC judgment noted: “We are conscious of the fact that by seeking disposal of the petitions, the federal government admitted to their defective investigation, which they did not conclude as prescribed by law, that is why all these issues have been raised. As a result now federal government is willing to get the case re-investigated. Under such an eventuality, this court observes that the legal course is necessary to be adopted for investigation.”
The court noted: “In this regard, we are of the view that the case of high treason is not a personal affair of either federal government or investigation agency. The federal government and investigation are bound by law to follow the procedural law in letter and spirit. Ignorance of law is no excuse as a principle settled by the superior courts.”
The IHC bench held that investigation had not been done in this case. “In case of high treason, waiver is not prerogative of any authority. By virtue of Article-6 of the Constitution and sections applied in the complaint, it is explicitly clear that aider, abettor or facilitator are required to be prosecuted. It does not depend upon the sweet will of anybody including investigation agency or federal government.”
The judgment also expressed anger over concealment of facts saying, “While perusing orders available on record passed by the learned special court, it appears that most of the material was concealed even from the special court.”
The court has discarded the idea of selective evidence and said, “As per the Police Rules 1934, the process of investigation is defined and it is there that an investigation officer shall not commit himself prematurely to any view of the facts or against any person.”
The IHC bench noted that the wisdom behind it clearly leads towards a positive view that the investigation should not be conducted on personal whims or “sweet will” of the investigation officer or any person connected thereto. “Sifting of the fact is an authority that lies with the courts,” the IHC bench held.
Establishing the aspect that this high treason case was poorly investigated, the IHC bench says the officers conducting poor investigation may face consequences as defined in the Pakistan Penal Code (PPC).
Regarding the time period for conclusion of the investigation, the IHC bench says that it is to be decided by the special court as it is its discretion.
There was another petition filed by advocate Taufiq Asif who had adopted that Musharraf’s trial should be kept separate from all the others for swift disposal of the matter. Regarding this petition, the IHC bench noted in its judgment that this will be decided later on.
Talking to newsmen after the announcement of the judgment, legal counsel for Gen Musharraf, Advocate Ch Faisal, said that the IHC bench had endorsed their stance on this issue. “We constantly had been saying that the government had been persecuting Gen Musharraf through defective and poor investigation,” he said.