On 16th January, 2020, the Pakistan Supreme Court office refused to hear the plea filed by Musharraf against the verdict passed by the Islamabad-based Special Court in high treason case. The said Special court awarded death sentence to former President and army chief Musharraf for declaring emergency during November 2007 stating it as unconstitutional, abrogation and subversion of constitution which is an offence under Article 6 of Pakistan’s Constitution.
During the year 1999, former Pakistan Army Chief and President Pervez Musharraf came to power by dissolving the parliament led by the former Prime Minister Nawaz Sharif in a bloodless coup. In 2001, Musharraf declared himself as president while also continuing to be the army chief. He remained in power till 2008.
The era of Musharraf started to face decline during the year 2007, when he sacked the Chief Justice of Pakistan Justice Iftikhar Chaudry for “misuse of authority” which led to a mass protest by the lawyers. On 3rd November, 2007, Musharraf declared emergency in country and removed several prominent judges who were later kept under house arrest. The emergency remained in force till 15th December, 2007.
Months after the emergency period, Musharraf resigned his office as two main governing parties consented to initiate impeachment proceeding against him. On July 31, 2009, the Supreme Court of Pakistan declared the emergency imposed by Musharraf as unconstitutional, abrogation and subversion of constitution which is violation of Article 6 of the Pakistan Constitution. Musharraf refused to answer the charges against him and left the county on self-imposed exile to UK.
Subsequently in the year 2012, the senate of Pakistan passed a resolution insisting the arrest of Musharraf on his arrival. On 24th March, 2013, Musharraf returned to Pakistan to contest the general elections. However the court summoned him for the treason charges against him and also added his name to Exit- Control Lists. Further, he was also barred in contesting the parliamentary elections.
During the month of December, 2013, the 3 member special court headed by Peshawar High Court Chief Justice, Justice Waqar Ahamed Seth, constituted to hear Musharraf’s treason case summoned him to appear before it. However Musharraf failed to appear citing his health condition. March 30, 2013 the court indicted for treason charges against Musharraf for which he pleaded not guilty. The Supreme Court ordered to remove his name from the Exit control list only in the year 2016 citing his medical treatment. Since then he hasn’t returned to his country and the special court has declared him as absconder.
In the month of March, 2019 the Supreme Court gave Musharraf a final chance to appear before the Special court failing which he would lose the right to defend. However Musharraf did not make his appearance before the court. Hence the Supreme Court ordered the special court to proceed further with the case in absentia.
The special court heard Musharraf’s treason case on daily basis and concluded the trial on 13th November, 2019 and reserved for judgment on 28th November, 2019. Meanwhile an application was moved by Musharraf before the Lahore High Court challenging the reservation of judgment by the Special Court. Simultaneously the interior ministry filed an application before the Islamabad High Court bench headed by Chief Justice Athar Minallah seeking to halt the Special Court from pronouncing its judgment which was duly ordered on 27th November, 2019.
Despite the Islamabad High Court’s order, on 17th December, 2019 the special court pronounced the verdict with 2-1 split awarding death sentence to Musharraf in high treason case. The judgment has triggered controversies in Pakistan due to the order passed by one of the judges, Justice Waqar Ahamed Seth who directed the law enforcement agencies to enforce the judgment in accordance with law. He further ordered “if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan and be hanged for 3 days”. The military officials has opposed the decision saying the trial was concluded in a hasty manner and called the judgment as “transgressing humanity, religion, culture & any other values”
Challenging the special court decision, a review petition was filed before the Lahore High Court on 27th December, 2019. However due to the non-availability of bench during winter vacation, the said petition came up for hearing on 9th January, 2020, before the bench comprising Justice Syed Mazahar Ali Akbar Naqvi, Justice Mohammad Ameer Bhatti and Justice Chaudry Masood jehangir. On 13th January, 2020, the Lahore High Court unanimously declared the constitution of special court as unconstitutional and hence the sentence awarded by the special court as void.
1. The Lahore High Court held the constitution of special court as unconstitutional and ruled that the case filed against the former president is not in accordance with law.
2. The court took note of the argument put forward by the Additional Attorney General that the word ‘suspension’ was added to the Article 6 of the constitution by way of amendment in 2010, wherein the emergency was declared in the year 2007 and hence Musharraf cannot be tried under the amended law.
3. The court also remarked that the special court was not constituted in accordance with law as the law requires the cabinet’s permission to set up a special court. In the present case the constitution of Special court in treason case was never in the agenda of the cabinet.
4. The court also observed that the president has the power to declare emergency under article 232 of Pakistan Constitution and hence it does not amount to abrogation and subversion of constitution as stipulated under article 6.
Such being the case, Musharraf has moved to the apex court challenging the death sentence awarded by the special court. The petition was filed seeking to set aside the decision of Special Court in the interest of justice and fair play stating that the trial was conducted in violation of constitution and also seeking the right of audience in his absence. However the Supreme Court office has returned the appeal on the ground that in the event of convict not surrendering himself, the appeal cannot be heard. The advocate appearing for Musharraf has indicated that an appeal against the decision of registrar would be filed.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
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