Justice Jawwad S Khawaja remarked Pervez Musharraf as an army chief had no authority to issue Provisional Constitutional Order (PCO).
He gave these remarks while presiding over a 3-member bench of Supreme Court (SC) during the hearing of treason case against Pervez Musharraf Thursday.
Justice Khilji Arif Hussain remarked “ if the facts of this case are looked into even then trail will be needed. Treason case against Musharraf will run in a special court. The said special court will decide if the charge has to be framed or otherwise. We can not issue any directives to special court”.
Justice Jawwad S Khawaja observed “ the facts of the case are before us. We have to see what is held by Pervez Musharraf in his defence. Pervez Musharraf was not entitled to issue PCO in the capacity of army chief. An individual who was army chief as well as president issued PCO on November, 3. Musharraf issued PCO as army chief. As per law an army chief is a subordinate officer. Army chief reports to secretary defence. How can the chief of army staff acquire such powers on his own? No documentary evidence has been presented with whom he conducted consultation process on issuance of PCO. We have repeatedly summoned interior secretary and other functionaries and asked about it from them. The successive PPP-led government has not initiated even an iota of proceedings against Pervez Musharraf. Such a big tragedy took place on Novermber, 3 but no action was taken. Interpretation of article 6 has now been made in Pervez Musharraf case.
A.K Dogar said “ This is the only request from our side that federation be ordered to initiate proceedings against Pervez Musharraf.
Justice Jawwad S Khawaja remarked “federal government has not even considered this matter till todate. No sign of concern was witnessed at any level on the part of government despite occurrence of such a major mishap.
Justice Ejaz Afzal remarked “ Pervez Musharraf’s counsels are of the view that secretary defence be approached in connection with respect to this case. Filing of this petition is premature in view of these lawyers”.
Justice Jawwad remarked secretary law was issued notice through this case. We were told on April, 22 interior secretary has been made competent officer through an SRO. Law ministry has admitted that it has considered nothing with reference to constitution of special court.
AK Dogar said clause No 3 of high treason act was alien to constitution and was tantamount to curbing the independence of the judiciary. As per courts decisions if it is enshrined in the constitution that courts can not hear any matter even then there will be no binding on the courts on this count. No law can deprive the common man of his constitutional right to resort to the courts.
Justice Khilji remarked “ the superior courts have no authority to conduct trial in treason case. But there is no bar on the courts in issuing directives to initiate proceedings with reference to it.
A K Dogar said Ibrahim Satti one of the counsels of Pervez Musharraf gave arguments for six days by expressing trust on the whole bench. Therefore, raising of objection by Pervez Musharraf on Justice Jawwad is baseless.
Justice Jawwad S Khawaja remarked “ he never felt on any occasion of hearing that he was demonstrating bias. If it happened so then he would separate him from the case.
The hearing of the case was adjourned for three days.