LAHORE: A Lahore High Court (LHC) three-member bench observed on Thursday that it could not hear an appeal against the death sentence awarded to former army ruler Gen (retd) Pervez Musharraf by a special court.
However, it remarked the bench could see whether the proceedings, initiated by the special court, were in accordance with the law.
Accepting the petition for regular hearing, the bench led by Justice Sayyed Mazahar Ali Akbar Naqvi, asked the counsel for Pervez Musharraf to come prepared to the court on the next date of hearing.
Additional Attorney General (AAG) Ishtiaq A Khan, representing the federal government, informed the LHC full bench that formation of the special trial court and filing of a complaint against Gen Musharraf were not approved by the cabinet, as required by the law. Later, the trial resulted in conviction of former military ruler on high treason charges.
Gen Musharraf, through his counsel, has challenged his conviction, formation of the special court and filing of a complaint against him by the government of former prime minister Nawaz Sharif.
The AAG informed the bench that only one letter was available in the record, which was written by the then prime minister Nawaz Sharif to the interior ministry, requiring it to initiate an inquiry against Musharraf on the charges of high treason. The letter was not approved by the cabinet, he added.
Responding to a query by Justice Naqvi, the federal law officer said neither the approval was sought nor it was granted by the federal cabinet for filing of a complaint and formation of a special trial court. He said the special court was established on Nov 18, 2013 and the complaint against Musharraf was filed on Dec 11, 2013. However, as per the record, the then federal cabinet did not hold any meeting on the subject, he added.
Justice Naqvi wondered if there was any provision in the criminal law, allowing formation of a trial court before filing of a complaint. The bench asked the counsel for Musharraf how a decision of the high court would affect a judgment that had already been given by a special court. “You should also tell the court how the petition is maintainable,” the bench asked.
“First you prove your case, the court decision will come after it,” the court told the Musharraf counsel. The court expressed resentment over Musharraf’s counsel and asked whether he had carefully read the case and prepared arguments. The lawyer replied that the case was not complicated, as the formation of special court was illegal. “You have not even challenged the law under which the legal proceedings were held. It is an extremely serious matter, and you should come to the court fully prepared,” the court observed.
The bench called Barrister Ali Zafar, who was present in the courtroom, to rostrum and asked, “If the proclamation of an emergency can be called high treason?”
The senior lawyer told the court: “As per my knowledge, imposition of an emergency could not be termed treason.” The court said: “If the emergency is not treason, how it all started?”
The law officer informed the court that initially an inquiry was held by the Federal Investigation Agency (FIA) and its report was presented before the trial court. He stated that the agency, in its report, termed the acts of Musharraf unconstitutional. However, he added, the trial court did not discuss the report before framing charges against Gen Musharraf.
A legal panel, representing Musharraf, also argued that the declaration of state of emergency did not fall in the definition of treason. Panel’s head Khwaja Ahmad Tariq Rahim said imposition of emergency had also not been declared treason in case of chief justice (retd) Abdul Hameed Dogar. He argued that Article 6 of the Constitution, which deals with offence of high treason, had been amended through the 18th Amendment and implemented retrospectively against Musharraf.
Advocate Azhar Siddique, another counsel for Musharraf, stated that the head of the special trial court also implemented the law retrospectively while another member of the three-judge court dissented to the interpretation.
To a court query, AAG Khan said the trial proceedings could not be concluded without recording the statement of an accused under Section 342 of CrPC. “Was the matter declared high treason in Abdul Hameed Dogar case (by the Supreme Court),” the court asked. “The proclamation of emergency was declared unconstitutional in Abdul Hameed Dogar case, but the emergency was not declared high treason,” the AAG conceded.
The court didn’t order any criminal case proceedings over the matter of proclamation of emergency, the AAG added. He said that Nawaz Sharif, who was Prime Minister at that time, lodged a fake case against Pervez Musharraf due to personal grudge.
The bench adjourned further hearing till Friday (today) and also directed Barrister Ali Zafar to render his assistance in the case.
A special court had convicted Musharraf for high treason and handed him death penalty on five counts in a 2-1 majority verdict on Dec 17.
In the petitions, Musharraf asked the LHC to set aside the special court verdict for being illegal, without jurisdiction, unconstitutional, in violation of Articles 10-A, 4, 5, 10 and 10-A of the Constitution.
He pleaded that the impugned verdict be suspended till decision on the main petition and directions be issued to the federal government to produce complete record of the special court.