May 01, 2014Print : Top Story
ISLAMABAD: The prosecution in the treason case against former president General (retd) Pervez Musharraf on Wednesday requested the Special Court to fix the date for providing evidence in the instant case.
Prosecutor Muhammad Akram Sheikh moved an application under Section 6(1) (c) and Section 9 of the Criminal Law Amendment (Special Court) Act, 1976 read with enabling provisions of Code of Criminal Procedure, 1898 for recording of prosecution evidence.
He prayed that the case might graciously be heard on day-to-day basis as envisaged by the Criminal Law Amendment (Special Court) Act, 1976.The prosecution contended that the accused had been indicted and pleaded not guilty to the charges on March 31, 2014, however, despite the plea the Special Court had neither proceeded to take all the evidence as might be produced in support of the prosecution nor had any specific timeframe been given to attain this object.
“It seems by the conduct of the accused that his interest is in delaying the commencement of the evidence and ultimately frustrating any culmination of this treason trial,” the prosecution submitted adding that this had been done by filing twenty one applications till date by the defence and resultantly since the last four months, the Special Court had been embroiled in disposing of these applications, rightly so keeping in mind the fair trial right of the accused.
The prosecution submitted that the defence was overstepping the indulgence shown by the Special Court and had now started the practice of conditionally withdrawing applications, which might very well be filed again or withdrawn again.
Muhammad Akram Sheikh contended that indeed the right of speedy trial is implicit in the right to fair trial guaranteed by Article 10A of the Constitution of Pakistan 1973 but submitted that it was not just the interest of the accused but of all the stakeholders including the citizens of Pakistan that this trial be concluded within a reasonable time.
“Needless to say that this trial being unprecedented will set the tenor for any future trials of high treason,” the prosecutor submitted.
He further submitted that the Criminal Law Amendment (Special Court) Act, 1976 which regulates the procedure for such trials, mandated in Section 6(1)(c) that “…if the accused pleads not guilty or refuses to plead, or claims to be tried, the Special Court shall proceed to take all such evidence as may be produced in support of the prosecution.”
Akram Sheikh contended that Section 9 of the Criminal Law Amendment (Special Court) Act, 1976 dictates that no trial before the Special Court ‘shall’ be adjourned for any purpose unless it is in the opinion of the Special Court to be necessary in the interests of justice.
“The interest of justice can never be aligned with delay in trial, rather the interest of justice is served only by fixation of the case for prosecution evidence,” Akram Sheikh submitted.He contended that it was a settled proposition not just in the constitutional guarantee of fair trial rights but in criminal law as well that an accused was adjudged expeditiously as necessitated by the complexity of the case and if he was found guilty he should be punished and if innocent he should be acquitted.
He recalled that in Muhammad Hussain vs. State [PLD 1959 (WP) Lahore 322], the court held that ‘the intention of the law is that a criminal case must expeditiously be disposed of without unnecessary delay’. Consequently, day-to-day hearing in a criminal case is the rule and adjournment is an exception.
He submitted that Section 344 of the Code of Criminal Procedure 1898, requires the Court to record (1) reasons for every adjournment (2) to consider the reasonableness for, and (3) the period for which an adjournment is to be granted.
He stated that the section indicated that adjournments could be made for absence of witnesses or for any other reasonable cause, the latter being a question of fact in each case. Therefore, a court must apply its mind to the reasonableness of an adjournment request, record reasons why the interest of justice was served by such an adjournment and should desist from granting long adjournments in a perfunctory manner.
Akram Sheikh submitted that the accused had adequate time and facilities for preparation of his defence and there was no other compelling reason for deferring the recording of prosecution evidence.
He further submitted that the Special Court comprised members of three respective provincial high courts who had been notified to be part of this Special Court, which is sitting in Islamabad.
“It goes without saying that these members are dispensing justice in their provincial high courts to the citizens of Pakistan who are likely to be aggrieved by the disproportionate delay in instant trial. Every citizen is equal in the eyes of law and entitled to access of justice on a par with one another”, Sheikh concluded.