LHC refuses to fix another Mush petition in winter vacation

LAHORE: The registrar office of the Lahore High Court (LHC) on Friday returned a civil miscellaneous application filed by Gen (R) Pervez Musharraf against his conviction in high treason case due to unavailability of the relevant full bench during the winter vacation.

A legal panel comprising Khwaja Ahmad Tariq Rahim and Azhar Siddique submitted the application under Section 151 of Civil Procedure Code (CPC) in a pending main writ petition of Musharraf under Article 199 of the Constitution, challenging all actions taken against him starting from filing of high treason complaint to establishment of the special trial court and its proceedings. A three-judge full bench, recently constituted by LHC Chief Justice Sardar Muhammad Shamim Khan, is scheduled to take up the main petition on Jan 9, 2020. The bench comprises Justice Syed Mazahar Ali Akbar Naqvi, Justice Muhammad Ameer Bhatti and Justice Chaudhry Masood Jahangir. The special court in Islamabad announced its verdict on Dec 17 and handed down death penalty to Musharraf with a two to one majority.

In the civil miscellaneous application, Musharraf asked the high court to set aside the special court’s verdict for being illegal, without jurisdiction, unconstitutional, in violation of Articles 10-A, 4, 5, 10 and 10-A of the Constitution.

Advocate Siddique said the registrar officer returned the application as the full bench was not available during the winter vacation. He said the application will be filed in the first week of January, 2020.

In the 86-page petition, filed by Advocate Azhar Siddique on behalf of Musharraf, he stated that Musharraf was not given a chance to present his arguments and that the “special court quite abruptly and hurriedly wrapped up a trial that was far from its conclusion.

“The hastily announced judgment is emanating from a prosecution case which suffers, for all intents and purposes from an admitted, noticeable and unexplained delay of over five years from the date of the alleged offence and initiation of proceeding,” the petition stated.

“The then government, by failing to follow the mandated procedure laid down in Section 5 (1) of the Special Courts Act, 1976, lodged the complaint against the applicant in an unlawful manner. Therefore, the complaint against the applicant is void ab initio. The law clearly prescribes that the special court shall only commence proceedings once a complaint of high treason is completely filed by the ‘federal government’.”

The petition also challenged paragraph 66 of the special court’s verdict, which read, "We direct the law enforcement agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan, and be hanged for three days.

"The honourable respective president of the special court has crossed all religious moral, civil and constitutional limits, while ruthlessly, irreligiously, unlawfully, unrealistically awarding a debilitating, humiliating, unprecedented and against the dignity of a person sentence,” the petition stated.

“The wording of paragraph 66 of the impugned judgement, although holding minority view, are still an exercise of languages which directly violates Article 2 of the code of conduct to be observed by the judges,” the petition read.

He says non-examination of accused in a criminal trial and any lapse to fulfil this legal requirement adversely affects the prosecution case. And same had happened in the instant case as capital punishment was awarded to Pervez Musharraf without examining him under Section 342 of Criminal procedure Code (CrPC).

It added that Justice Nazar Akbar in his dissenting note had mentioned that the actions taken by Musharraf on Nov 3, 2007 can be termed illegal and unconstitutional but they cannot be tantamount to treason.

“Article 6 of the Constitution had introduced the definition of treason via the 18th Amendment on April 20, 2010, while the crimes in question had occurred in 2007. “One cannot conclude that the emergency of Nov. 3, 2007 was ‘subversion’ or ‘abrogation’ of the Constitution. Neither the Constitution was replaced by any Legal Framework Order nor even the basic structure of the Constitution has been changed.”

“The importance of examining the accused in a criminal trial is enormous and any lapse, failure or omission to fulfil this requirement adversely affects the prosecution case.”

The special court did not take “into consideration that no actions detrimental to the national interest were taken by the applicant”. No offence of High Treason is made out from the evidence which had been presented before the Special Court. Even after the introduction of 18th Amendment Article 6 of the Constitution passed on April 20, 2010, it is still clear that General (retired) Pervez Musharraf did not commit any offence,” contended the application.

The application also complained that the trial court, without deciding four applications, filed by newly appointed prosecution team, opted to announce the final verdict.