A three-member bench of the special court, headed by Peshawar High Court Chief Justice Waqar Ahmad Seth, took up the high treason case against former military ruler Pervez Musharraf today.
Although the special court — comprising Justice Seth, Justice Nazar Akbar of the Sindh High Court (SHC) and Justice Shahid Karim of the LHC — had announced that it would deliver its verdict in the case today, the government’s prosecutor, Advocate Ali Zia Bajwa, said that they had submitted three petitions today.
One of the petitions asks that the court make three individuals — former prime minister Shaukat Aziz, former Supreme Court chief justice Abdul Hameed Dogar and former law minister Zahid Hamid — suspects in the case.
“We want to make Musharraf’s facilitators and companions suspects as well. It is important that the trial of all suspects is held at the same time,” the prosecutor said.
“Submitting such a request after three and a half years means the government doesn’t have the right intentions. Today the case was set for final arguments and now new petitions have been submitted,” remarked Justice Karim.
Justice Akbar questioned the lawyer regarding the evidence against the individuals that the government wanted to include in the case.
“The stage of investigations and [presenting] evidence has passed. Has there been a new investigation against the included suspects?” he asked, in response to which the prosecutor said that an investigation can only be carried out after the complaint is registered.
The prosecutor said that according to a 2014 petition, Shaukat Aziz had told Musharraf to impose emergency.
Justice Akbar remarked that the prosecutor was referring to Musharraf’s petition in which the verdict has been reserved while Justice Karim added that the Supreme Court has also issued a verdict on a petition regarding other suspects.
Justice Akbar said two weeks had been granted to present a modified charge sheet when the indictment took place in 2014. “As per the law, charged can be amended anytime before the verdict,” responded the prosecutor.
“If you want to further make anyone a suspect, submit a new case,” said Justice Karim, asking: “Does the government want to delay Musharraf’s trial?”
“If three individuals are made suspects, the government should also submit requests to make the former cabinet and corps commanders suspects,” he added.
The hearing is underway.
The high treason trial of the former military dictator for clamping the state of emergency on Nov 3, 2007, has been pending since December 2013.
He was booked in the treason case in December 2013. Musharraf was indicted on March 31, 2014, and the prosecution had tabled the entire evidence before the special court in September the same year. However, due to litigation at appellate forums, the trial of the former military dictator lingered on and he left Pakistan in March 2016.
It is pertinent to mention that the special court last month had also reserved its verdict in the long-drawn high treason case. However, an Islamabad High Court (IHC) order on November 27 — a day before the special court was set to announce its verdict — stopped the special court from doing so after the Pakistan Tehreek-i-Insaf (PTI) government sought deferment of the announcement of the verdict.
LHC recommends full bench hear Musharraf’s petition
Earlier in the day, the Lahore High Court (LHC) took up Musharraf’s petition against the special court hearing the high treason case against him as well as his civil miscellaneous application that urged the high court to halt the treason proceedings.
Justice Syed Mazahar Akbar Ali Naqvi sent the file regarding Musharraf’s case to the high court chief justice, recommending that a full bench be formed.
On Monday, the LHC issued a notice to the federal government to submit a written reply on Musharraf’s application in which he asked the high court to declare the proceedings pending before the special court and all actions against him — from initiation of the high treason complaint to the appointment of the prosecutor and constitution of the trial court — as unconstitutional.
The court had decided that it would hear the application today alongside the main petition submitted against the treason case proceedings.
During today’s proceedings, Additional Attorney General Chaudhry Ishtiaq A. Khan appeared in court on the government’s behalf while Khawaja Ahmad Tariq Raheem and Azhar Siddique represented Musharraf.
The court asked how the LHC could hear the petitions if the petitioner is a resident of Islamabad and asked for an example of another case on the basis of which the high court could hear the petition. Musharraf’s counsel Siddique said this had been done in the LNG case.
The court also asked if the high treason case against Musharraf would be heard in Islamabad today, in response to which AAG Khan said the special court will hear the high treason case and has also said it will announce the verdict today.
“Till the suspect’s statement is not recorded under Section 342 [of the Criminal Procedure Code], how can that happen?” the judge asked.
On Saturday, in an application filed through advocates Khawaja Ahmad Tariq Raheem and Azhar Siddique, Musharraf had asked the LHC to stay the trial at the special court until his earlier petition pending adjudication by the high court is decided. In that petition, the former dictator had challenged the formation of a special court holding his trial under charges of high treason and legal flaws committed in the procedure.
IHC halts special court verdict
In October, the special court was informed that the government had sacked the entire prosecution team engaged by the previous PML-N government to prosecute the high treason case against Musharraf.
The special court had on November 19 reserved the judgement in the case. The court said the verdict would be announced on Nov 28 on the basis of available record.
However, days before the final verdict was to be announced, the Pakistan Tehreek-i-Insaf (PTI) government sought deferment of the announcement of the verdict and in a fresh petition, requested the Islamabad High Court that “the special court be restrained from passing final judgement in the trial”.
The government petition was filed by the interior ministry through the additional attorney general.
Subsequently, on November 27, the IHC stopped the special court from issuing its verdict reserved in the case on November 19. Additionally, they directed the government to notify a prosecution team by December 5.
On December 5, the new prosecution team for the government appeared before the special court after which the special court adjourned proceedings till December 17, adding that it would hear arguments in the next proceeding and announce the verdict.
IHC verdict binding on the special court
The special court had observed that while it would not comment on the maintainability of the IHC order, the members of the three-judge court were of the view that the IHC’s order was not binding on them.
The IHC, however, ruled that its order of stopping the special court from announcing its verdict in the treason case was binding on it (special court) regardless of the fact that it comprises three high court judges.
The IHC is the written order stated: “A plain reading of the Act of 1976 [The Criminal Law Amendment (Special Court) Act] unambiguously shows that the Federal Government and the prosecution have a pivotal role. The trial proceedings under the Act of 1976, from initiation to the conclusion, are dependent on the presence of the prosecution appointed by the Federal Government…The Special Court cannot, therefore, pronounce the judgement without affording a reasonable opportunity of hearing to the appointed prosecutor.”
According to the IHC order, the Act of 1976 reads as a whole unequivocally makes it obvious that the trial proceedings are entirely dependent on the prosecution and that in its absence or without hearing it, judgement cannot be announced.