ISLAMABAD - Dr Khalid Ranjha, counsel for Gen (r) Pervez Musharraf, told the Special Court on Monday that Army Act 1952 had provision for trial of high treason offence for army personnel and the proceedings before that court ex-facie (on the face of it) were coram non judice (without jurisdiction).
The three-member bench, headed by Justice Faisal Arab and comprising Justice Tahira Safdar and Justice Yawar Ali, resumed hearing of high treason case against Pervez Musharraf under Article 6 of the Constitution during which Dr Khalid Ranjha advanced his arguments.
Dr Ranjha said the incumbent government out of malice and personal vendetta had initiated trial against the former president under Article 6 of the Constitution read with High Treason (Punishment) Act 1973.
The Special Court was established under Criminal Law Amendment (Special Court) Act 1976.
He said the ruling PML-N and its leadership had grudge against his client and held him of gross contempt in order to settle their personal scores against him through that case. He said Army Act was applicable on an army man breaching the Constitution.
Referring to Section 92 of Pakistan Army Act 1952, he said the case against Musharraf under high treason was time barred, adding the successive governments (PPP and interim) did not take action against Pervez Musharraf though after resigning as president on 18th August 2008 he remained in Pakistan for over three months and was given warm send off.
The benefit provided under Section 92 could not be taken away from the accused. Section 92 (2) says; “No such person shall be tried for an offence, unless his trial commences within six months after he had ceased to be subject to this Act.”
Dr Ranjha urged the court that it should have refused to hear this case when Nawaz Sharif government had filed the complaint, stating it was not their jurisdiction and military court should hear case against Musharraf under Army Act 1952.
He said the former military ruler could not be punished under High Treason (Punishment) Act 1973 as ‘held in abeyance’ was not covered in the law. “I am not questioning the jurisdiction of the Special Court, but only want that in view of the sections related to high treason mentioned in the Pakistan Army Amendment Act 1977 the Military Court should hear the case.” “By the consent of the Military Court it could be referred to this Special Court.”
Defence counsel said if the Parliament in its wisdom had drawn dichotomy between civilian and army personnel then it should be respected. He said Pakistan Army Amendment Act 1977 had put an embargo on the Criminal Law Amendment (Special Court) Act 1976, therefore, Musharraf case should be tried by Military Court.
Dr Ranjha said Musharraf also enjoyed fundamental rights under Article 4, 10-A and Article 25 of the Constitution. The Section 549 CrPC ousted the jurisdiction of courts constituted under the Code and mandated that person subject to military law should be delivered to the authorities for trial by Court Martial.
Ranjha argued under Section 7 and 8 of Army Act 1952 Musharraf should be treated like General Khalid Gul Khan, General Muzaffar Afzal and General Khalid Zaheer, who were found involved in NLC scam though retired were restored to their ranks and then tried in Court Martial.
Earlier, before the start of the proceedings an unpleasant incident took place in courtroom when the prosecution and the defence counsels again exchanged hot words. Akram Sheikh alleged that Rana Ejaz, one of Musharraf counsels, tried to physically harm him, while Rana Ejaz said he had inquired from Akram Sheikh about his wife’s health.
Snubbing both the sides, Justice Faisal Arab asked them to maintain court decorum and do not behave like school and college students. He also sought the CCTV camera, installed in the courtroom, footage.
The hearing was adjourned till today (Tuesday). Dr Ranjha would resume the arguments that Musharraf should be tried under Army Act.
Agencies add: During the course of hearing, Dr Ranjha said Musharraf's application for transfer of case to an Army Tribunal should not be considered as Musharraf's confession.
On this Justice Faisal Arab remarked that the court reviewed the case carefully even if an accused confessed his crime.
Dr Ranjha said that an army man's trial is always conducted in Army Tribunal, even after his retirement and the Special Court proceedings against Mushararf were without legal jurisdiction.
He said there were articles of high treason in Army Act and Musharraf could not be tried in any civilian court in the presence of Army Act.
Meanwhile, an anti-terrorism court (ATC) approved former president General (r) Pervez Musharraf’s petition seeking exemption from Monday's hearing in the judges detention case.
ATC judge Ateequr Rehman heard the exemption plea on Monday. Public prosecutor Amir Nadeem appeared in the court while Musharraf's lawyer Ilyas Siddiqui along with two guarantors Rashid and Mushtaq were also present during the hearing.
Prosecutor Amir Nadeem objected Musharraf’s persistent absence from the hearings and non-provision of his medical report and pleaded for action against him and his guarantors.
On this, Musharraf's lawyer Ilyas Siddiqui told the court that his client was ill and could not attend the hearing. He ensured the court to provide Musharraf's medical record on next hearing.
The court, then, provided exemption to Pervez Musharraf from Monday's proceedings and adjourned the case till February 24.