Special Court raises storm from nowhere

  • Musharraf given death sentence for ‘treason’

  • Opposition parties term judgement victory for democracy

  • Former Army Chief decries sentence as unfair

By Ajmal Khan Yousafzai
ISLAMABAD: In an unprecedented development in Pakistan’s history, a three-member bench of a special court in Islamabad on Tuesday handed death sentence to former president Gen (retd) Pervez Musharraf for clamping the state of emergency on Nov 3, 2007, which held the Constitution in abeyance.
A three-member bench of the special court, headed by Peshawar High Court (PHC) Chief Justice Waqar Ahmad Seth and comprising Justice Nazar Akbar of the Sindh High Court (SHC) and Justice ShahidKarim of the Lahore High Court (LHC), heard the case which was pending since December 2013. The verdict was a split decision 2-1 in favor of the former president.
The verdict was issued under Article 6 of the Constitution. According to Article 6, “Any person who abrogates or subverts or suspends or hold in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance the Constitution by use of force or show force or by any other unconstitutional means shall be guilty of high treason.”
The punishment for high treason is death or life imprisonment, according to the High Treason (Punishment) Act, 1973.
The former president is currently residing in Dubai. His counsel can appeal against the verdict in the Supreme Court. If the top court upholds the special court’s verdict, the president possesses the constitutional authority under Article 45 to pardon a death row defendant.
A detailed verdict will be issued in 48 hours.
The high treason trial was initiated by the previous government of the Pakistan Muslim League-Nawaz (PML-N) in 2013 after coming to power.
Musharraf was booked in the case in December 2013. He was indicted on March 31 the following year 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.
In 2016, Musharraf – who had been placed on the Exit Control List (ECL) – left Pakistan for Dubai for medical treatment after his name was removed from the no-fly by the interior ministry.
On Tuesday, the court announced the verdict it had saved on Nov 19 “on the basis of available record”.
At the time, the special court had said it would announce the verdict on Nov 28. However, days before the final verdict was to be announced, the government sought deferment of the announcement of the verdict. It also filed a petition with the Islamabad High Court (IHC), requesting that “the special court be restrained from passing final judgement in the trial”.
Subsequently, on Nov 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 Dec 5.
However, the special court bench was 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 was binding on it (special court) regardless of the fact that it comprises three high court judges.
On Dec 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 and announce the verdict on the same day.
Although the special court had announced that it would deliver its verdict in the case on Dec 17 (today), the government’s prosecutor, Advocate Ali Zia Bajwa, said that they had submitted three fresh petitions today.
One of the three petitions asks that the court make three individuals — former prime ministerShaukat Aziz, former Supreme Court chief justice Abdul Hameed Dogar and former law minister Zahid Hamid party 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 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 an 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 earlier granted to the government to present a modified charge sheet. “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.
Justice Karim said that without the court’s permission, indictments cannot be amended. Justice Akbar added that no formal request had been received by the court for changes to the charge sheet. “Without the court’s permission, no new request can be submitted,” said Justice Karim, adding: “We will not hear arguments on a request that was not formally submitted.”
“The prosecution doesn’t even know how to submit a request in the court,” remarked Justice Akbar, at which the prosecutor apologised. “Your purpose was just to get through today,” the judge noted. Justice Karim also asked how the interior secretary can amend the charge sheet without the approval of the cabinet. “Where is the approval of the federal government and the cabinet? According to a Supreme Court verdict, the federal government means the cabinet,” he said.
He added that if the government doesn’t want there to be a delay, it can submit a new request against the other suspects. Musharraf’s counsel Advocate Raza Bashir said he had submitted a request to record his client’s statement via Section 342 of the Code of Criminal Procedure (CrPC), adding that his client should be given the right to a fair trial.
“Supreme Court had ended the right to record his statement via Section 342,” Justice Akbar responded, adding that the former president had “wasted” six opportunities to record his statement via the CrPC.
“Musharraf should get a right to defend,” said Bashir.
“You and the prosecution are serving as his defence,” remarked Justice Akbar, noting that the court had said Musharraf could be presented at any time. To which, Bashir said his client’s health was not well enough for him to appear before the court.
“How can I defend Musharraf without Section 342 statement?” he asked. Justice Seth said that if he is unable to defend his client, it means that his arguments have concluded. Bashir asked for 15-20 days to get Musharraf’s statements recorded via Section 342 to which Justice Seth said that they will review the 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.