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April 16, 2013

Does Article 6 apply to Musharraf, SC asks AG

 
April 16, 2013

ISLAMABAD: The Supreme Court on Monday asked the Attorney General (AGP) of Pakistan Irfan Qadir to explain if the Article 6 of the Constitution applied to former President General (retd) Pervez Musharraf for high treason and come up with a reply of the federal government in writing in the instant matter through a concise statement by April 17.
The directive came during the hearing of identical petitions by a two-member bench, seeking prosecution of former president Pervez Musharraf for abrogating the Constitution. The bench comprised Justice Jawwad S. Khawaja and Justice Khilji Arif Hussain.
During the hearing, the apex court observed that it was for the Federation to prosecute a person and said that the federal government had not taken any action either in pursuance of its July 31, 2009 judgment or in accordance with a unanimous resolution passed by the Senate for prosecuting a person under high treason for subverting and abrogating the Constitution.
A two-member bench of the apex court, comprising Justice Jawwad S Khawaja and Justice Khilji Arif Hussain, heard identical petitions, seeking prosecution of former president Pervez Musharraf for abrogating the Constitution.
In its order, the court ruled that under Section 15 of the High Treason (Punishment) Act 1973, read with Criminal Law Special Court Act 1976, it was for the Federation to establish a special court and to prosecute a person for violation of Article 6 of the Constitution.
“It is evident from the hearing so far that the federal government has not taken any action either in pursuance of the court’s July 31, 2009 judgment or in pursuance of the Senate’s unanimous resolution passed for prosecuting a person,” the court ruled in its order.
The court directed the federal government to submit its reply by April 17 in writing through a concise statement, supplied by relevant documents regarding any action taken by it.
At the outset of the hearing, the Attorney General of

Pakistan, Irfan Qadir, submitted that he had a number of preliminary objections to the proceedings of the court but not against the petitions.
Referring to the court’s earlier observation in the instant case that ‘justice not only be done but seems to be done’, the attorney general said he was of opinion that justice does not seem to be done.
Irfan Qadir contended that there were judges sitting in the court who had taken oath under the Provisional Constitution Order (PCO), therefore, how could the court proceed in a matter which revolved round the unconstitutional acts of the respondent (Pervez Musharraf).
The court, however, asked the attorney general to inform it about the stance of the government if it had taken any step after the July 31, 2009 judgment of the court and in pursuance of the Senate resolution passed unanimously and after the return of the respondent, Pervez Musharraf, on March 24, 2013.
Justice Khilji Arif Hussain asked the attorney general to state if Musharraf’s act of November 3, 2007 by imposing emergency in the country was constitutional or unconstitutional. He further asked him whether or not the former military ruler should be tried under the Article 6 of the Constitution.
Irfan Qadir, however, replied that at present while representing the Federation, he was under no instructions but could give an oral statement before the court. The court, however, sought the reply of the federal government in writing through a concise statement, supplied by relevant documents in the instant matter by April 17.
Justice Jawwad S Khawaja remarked that for the last 65 years, the nation faced many problems, adding that many commissions had been constituted in different matters including the Asghar Khan Case but the Federation even had no record of that commission. Justice Khawaja said the court wanted to block the way of abrogators of the Constitution once and for all and punish the guilty.
He recalled that even Ahmed Raza Kasuri, learned counsel for former president, during the preliminary arguments had contended that many unhidden faces would come to the fore in the instant case. “It may but it’s time now that nothing should be concealed from the nation,” Justice Jawwad S Khawaja remarked.
Earlier, during the hearing, the court repeatedly asked the acting Secretary Ministry of Law, Justice and Parliamentary Affairs Sohail Qadeer Qureshi about the steps taken by the Law Ministry after the court’s July 31, 2009 judgment, the Senate unanimous resolution as well as after the return of Pervez Musharraf on March 24, 2013.
The acting secretary law, however, told the court that the said post fell vacant on March 15, 2013 while he took over as acting secretary on March 18, saying that although he was a law graduate, he did not have a judicial background and discharge administrative matters.
Later, the court directed him to provide details by 11.30am as to what steps had been taken by the federal government in pursuance of the court’s judgment of July 31, 2009 and the Senate resolution, etc.
The acting secretary was later on given time till 1pm after he failed to give a satisfactory reply. Later, the attorney general appeared before the court and said he had no instructions from the Federation on which the court sought a reply from the federal government in writing with concise statement supported by relevant documents by April 17 and adjourned the hearing.
Ahmed Raza Kasuri contended that before entering into any controversy, his prayer be considered for constituting a larger bench minus the Chief Justice of Pakistan. The court however told the learned counsel that it would be considered after the reply of the federal government.
The court also ordered that another identical petition, filed by Engineer Jameel Ahmed, would also be taken up with the instant petitions from April 17.Maulvi Iqbal Haider, advocate, Ahsan-ud-Din Sheikh, former President Lahore High Court Bar Association, Rawalpindi Bench, Taufiq Asif, President Lahore High Court Bar Association, Amjad Malik, President Pakistani Lawyers Association, UK, and Abdul Hakeem Khan, former vice chairman, Pakistan Bar Council, had filed identical petitions in the apex court, making the Federation and Pervez Musharraf as respondents.
The petitioners prayed to the apex court to direct the Federation to take Pervez Musharraf into custody immediately awaiting his investigation and prosecution under the High Treason (punishment) Act 1973.

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