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November 26, 2019

Impending judgment of special court in high treason case: Petitioner attacks his own decision


November 26, 2019

ISLAMABAD: The petitioner [interior secretary] of the high treason case against Pervez Musharraf has disputed the impending handing of the judgement by the special court, which has announced to deliver it on a complaint filed by him.

Just three days before the ruling is to be pronounced on Nov 28, a great sense of urgency and emergency has surfaced to stop the three-member special tribunal from it. In only two days, two petitions have been filed in the Lahore High Court (LHC) and Islamabad High Court (IHC) to prevent the forthcoming judgement by the special court. The two high courts have been approached in the hope that intended relief may be available from either of them if not from both.

Under the treason act, such a complaint can only be filed by the federal government through the interior secretary. Same was done in 2013 in Musharraf’s case when Nawaz Sharif was the prime minister. He was reluctant to proceed against Musharraf but was compelled to do so after the then Chief Justice Iftikhar Muhammad Chaudhry threatened to initiate contempt proceedings against him for not taking action against the former military dictator as per the Supreme Court judgement, which had held the November 3, 2007, imposition of emergency in violation of the Constitution.

In his petition filed in the Islamabad High Court, the interior secretary, who acts on the order of the federal government, has interestingly challenged the very establishment of the special court, meaning that it wants the tribunal to be wound up.

It is believed that the Imran Khan government weighed the pros and cons of its decision to halt the special court from handing down its ruling in the high profile case that is under trial for the past six years.

The Nawaz Sharif government always took refuge behind the excuse that it was the Supreme Court which struck off Musharraf’s name from the Exit Control List (ECL) which paved the way for his departure abroad a few years back never to come back.

The secretary expressed the view that on perusal of the documents, it is apparent that neither the complaint was filed through an authorised person nor was the special court formed properly as it was only the federal government which could have done so as interpreted in the Mustafa Impex by the Supreme Court, wherefore, this aspect also needs to be rectified as per law. According to this case law, all the decisions have to be taken by the federal cabinet and no the Prime Minister alone.

Five days back, the special court presided over by Peshawar High Court Chief Justice Waqar Ahmed Seth and comprising Justice Nazar Akbar and Justice Shahid Kareem announced that it will decide the complaint on Nov 28. The order came after the federal government de-notified its prosecution team in an attempt to check disposal of the case at an early date.

Justice Waqar Ahmed Seth questioned whether the government sought court permission before changing the entire prosecution team and said; “It is unacceptable and hence refused.” He said despite having 25 days the notification for new prosecution team has not been issued yet.

The secretary dubbed the written arguments filed in the tribunal by special prosecutor Akram Shaikh (appointed by the previous government) as illegal and disowned them. Therefore, he prayed that these arguments having been filed without authority are liable to be excluded and disregarded.

He said that as a consequence of the impugned order of the special court, his case has been seriously prejudiced in that the judgement is set to be announced despite incurable irregularities in procedure and notable shortcomings in the prosecution case which need to be corrected.

“The accused might be acquitted on technical grounds and other culprits may be let off the hook completely without even investigation or trial. The petitioner [secretary] resultantly craves the kind of indulges of this court to set aside the impugned order,” he said in the petition.

However, while narrating the brief facts of the case, the secretary said in his petition that the prime minister sent a letter to him on June 26, 2013, to direct the Federal Investigation Agency (FIA) to constitute a team to conduct a probe on charges of high treason against Musharraf. On the basis of this letter, an investigation team was constituted by the FIA, which conducted its inquiry and submitted a report to the secretary on November 16, 2013.

The secretary after consultation with the law division, relaying upon their legal expertise filed a complaint against Musharraf, which was duly registered on December 13, 2013. The complaint shows that a case was made out against the accused on five separate counts, including the very serious offence of holding the Constitution in abeyance on multiple occasion, he said.

He also requested the IHC to declare that the prosecution team could not have represented the federal government on account of the fact that they had been de-notified on October 23, 2019.

The trial is held under Article 6 of the Constitution, which says any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.

Any person aiding or abetting [or collaborating] the acts mentioned in clause (1) shall likewise be guilty of high treason. An act of high treason shall not be validated by any court, including the Supreme Court and a High Court. Parliament shall by law provide for the punishment of persons found guilty of high treason.