ISLAMABAD - The Islamabad High Court (IHC) Tuesday issued stay orders against the proceedings of special court that is conducting former military ruler Pervez Musharraf’s high treason trial for imposing November 03, 2007 emergency.
A single bench of IHC comprising Justice Athar Minallah stayed special court’s proceedings while hearing the writ petitions of former federal minister for science and technology Zahid Hamid who was Musharraf’s law minister in 2007, former judge of Supreme Court of Pakistan justice (r) Abdul Hameed Dogar who became chief justice of Pakistan after the imposition of November 3 emergency and former prime minister Shaukat Aziz.
All the three petitioners had moved the court challenging the special court’s order dated November 21 where it, by majority decision, had directed the federal government to include the names of Zahid Hamid, Abdul Hameed Dogar and Shaukat Aziz as abettors in Musharraf’s act of imposing emergency.
In this matter, federal government did not oppose the decision and a deputy attorney general (DAG) Malik Faisal Rafique said the court could issue a decision that it deem appropriate.
Earlier, an additional attorney general (AAG) Afnan Karim Kundi, representing federal government, had suggested the IHC bench to form a larger bench for hearing these petitions on December 12.
The three petitioners contended before the court that the special court had traveled beyond its jurisdiction. It had no powers to nominate other accused in this matter and under the law it had to see the federal government’s complaint that was only filed against former president Pervez Musharraf.
“In the instant matter only federal government has the powers to nominate accused,” maintained the petitioners.
During the hearing, Justice Athar remarked, “At the moment, the bench is to address the question of admissibility that whether or not these petitions can be filed before a high court”.
He further added that from February 03, 2015, the IHC would start hearing these cases on daily basis to resolve the issue of maintainability. IHC bench said the court had to examine two basic questions in this matter; whether these cases were maintainable or not and if maintainable, had special court got jurisdiction to nominate more accused other than the accused nominated by federal government.
The single bench heard these petitions with office objections raised by the registrar office of IHC that the petitions against the orders of special court were not maintainable before the high court.
During the court proceedings, Zahid Hamid was represented by Khawaja Haris Advocate, Abdul Hameed Dogar by Iftikhar Gillani Advocate, Shaukat Aziz by Barrister Wasim Sajjad and Musharraf by Barrister Farogh Nasim.
The counsels representing all the three petitioners adopted before the court that the proceedings of the special court could be stayed before deciding these applications. They said the special court could have had assigned some institution to investigate in this matter regarding the involvement of other accused and could have directed the institution to produce a report before the court but it could not direct the federal government to include more names among the accused.
Abdul Hameed Dogar’s counsel Iftikhar Gillani contended before the court that these petitions might be heard on merit alongside office objection. He added that they were seeking to set aside the November 21 order of the special court.
Justice Minallah said the court had to examine that whether these cases were maintainable and if so, could special court had the jurisdiction to direct federal government for inclusion of more names.
At this juncture, advocate Gillani said the election tribunals were also judges of the high courts but their decision could be assailed before the high courts. He added that in this particular case they were condemned unheard that is against the law.
He continued that during the hearing of Supreme Judicial Council (SJC) against the former chief justice, justice (r) Iftikhar Muhammad Chaudhry in 2007, an apex court bench had restrained the SJC from proceedings.
Gillani further said that the superior courts in the past had also restrained accountability court’s proceedings in the matters of Benazir Bhutto and Nawaz Sharif.
Shaukat Aziz’s counsel Barrister Waseem Sajjad said they had challenged the November 21 order before the Supreme Court which said the apex court could not hear the matter pertaining to the interim order of special court. However it could hear a case against the final verdict.
“Now we have come to the high court and once again facing the same question of maintainability,” he said.
Pervez Musharraf’s counsel Barrister Farogh Nasim said a person with no alternate remedy available, could file a case before the high court. He said his client had been facing danger of a sword continuously hanging over him.
Barrister Nasim said the special court had travelled beyond its jurisdiction and had directed federal government to initiate trial against Zahid Hamid, Abdul Hameed Dogar and Shaukat Aziz and this could result into capital punishment.
They added that the order of special court was against the spirit of Article 10-A of the Constitution and their clients had been made co-accused in treason case by the special court without issuance of any notice and carrying out investigation against them.
They pleaded the court to restrain special court from hearing the treason case against Musharraf till the final decision of the bench. These counsels for the petitioners produced apex court’s judgment in support of their arguments and mutually agreed that the proceedings of the special court could be stayed.
In his verdict, Justice Athar Minallah has mentioned that the restraining orders have been issued with the consent of stakeholders. The IHC will initiate further proceedings in this matter from February 03 on daily basis.