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December 28, 2019

Judgment against Pervez Musharraf: Appeal can be filed in apex court only

Top Story

December 28, 2019

ISLAMABAD: The judgement of the special court presided by the Peshawar High Court (PHC) Chief Justice, Waqar Ahmad Seth, which awarded death penalty to retired general Pervez Musharraf, is appealable only in the Supreme Court. Top legal experts opine that the verdict can’t be challenged in any other judicial forum under the law, governing the high treason trial. 

Azhar Siddique, advocate, on Musharraf’s behalf, has called the judgement in question in the Lahore High Court (LHC) saying it contains a mix of anomalies and contradictory statements and the hearings were rapidly and hurriedly wrapped up.

When contacted by The News, prominent lawyer and former president of the Supreme Court Bar Association Kamran Murtaza said that Musharraf can file appeal against the special court’s verdict in the Supreme Court alone, and no high court is the forum for any relief.

He referred to Section 12(3) of the Criminal Law Amendment (Special Court) Act, 1976, which says any party aggrieved by the final judgement of the special court may prefer an appeal to the Supreme Court within 30 days of the passing of the verdict. The provision further says no court shall entertain any plea as to the jurisdiction of the special court or as to the legality or propriety of anything done or purported to be done by it or order the release under sections 491 or 498 of the Code of Criminal Procedure or any other law of any accused person in a case triable by the special court for so long as it is seized of the case. No order, judgement or sentence of the special court shall be called in question in any manner whatsoever in or before any court or other authority except the appeal to the Supreme Court.

Musharraf was imposed death sentence under The High Treason (Punishment) Act, 1973, which reads a person who is found guilty of having committed an act of high treason as defined in Article 6 of the Constitution shall be punishable with death or imprisonment for life.

Kamran Murtaza said that whatever grounds Musharraf wants to take in his appeal, he has to submit to in the apex court and not any high court because no other judicial body is competent to hear that.

Another noted lawyer Barrister Omar Sajjad, during a chat with The News, echoed the same views and said the LHC where the appeal has been filed may reject it as the plea has to be filed in the Supreme Court. “It has been clearly provided in the law that the appeal will lie to the apex court, which ousts the jurisdiction of any other judicial forum. No high court figures in the concerned law.”

Kamran Murtaza pointed out that the special court doesn’t exist anymore and stood wound up after it handed the judgement in the high treason case. When it was in operation, even then its order can’t be challenged in a high court, he said and expressed reservations over the decision delivered by high courts in this connection.

The lawyer said it was ruled in the Raza Hayat Haraj case by the Supreme Court that not even an interim order of an election tribunal can be disputed in high court. The same analogy applies to the special court, he said.

The appeal filed in the LHC said that the special court announced award of capital punishment to Musharraf without examining him under Section 342 of the Code of Criminal Procedure (power to examine the accused). The importance of examining the accused in a criminal trial is enormous and any lapse, failure or omission to fulfill this requirement adversely affects the prosecution case, it said adding that a criminal trial cannot be simply complete without adhering to this mandatory legal requirement.

The petition stated that the special court has not taken into consideration that no actions detrimental to national interest were taken by Musharraf as no offence of high treason is made out from the evidence presented against him. It also challenged paragraph 66 of the special court judgement, which read: “We direct the law enforcement agencies to strive their level best to apprehend the fugitive/convict [Pervez Musharraf] and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk [in front of the Parliament House], Islamabad, Pakistan, and be hanged for three days”.