ISLAMABAD - A constitutional petition challenging the formation of special court for trial of former military ruler General (Retd) Pervez Musharraf under Article 6 for subverting and abrogating the Constitution of Pakistan was filed in the Islamabad High Court (IHC) here on Wednesday.
A single bench of IHC comprising Justice Riaz Ahmad will conduct the hearing of this petition moved by a Karachi based lawyer Sohail Hameed Advocate who questioned the formation of special court.
In his petition moved under Article 199 (1) (A) (B) of the Constitution of Pakistan, he cited Federation of Pakistan through Secretary Ministry of Law, Secretary Interior Ministry, Registrar Special Court and Pervez Musharraf as respondents.
He stated in the petition that a special court was constituted under section 4 of the Criminal Law Amendment (special court) Act 1976 for trial of Musharraf for committing on offence of high treason under Article 6 (1) (2) of the Constitution.
The petitioner added that the proceedings before the special court had started and Musharraf would face trial for committing the offence of high treason.
However, he contended, “Criminal Law Amendment (Special Court) Act 1976 is in violation of Article 6 (3) of the Constitution.”
He argued that Article 6 (3) provides that Majlis-e-Shoora shall provide by law for the punishment of persons found guilty of high treason. “Constitutional mandate under Article 6 (3) of the Constitution is only to the extent of punishment of persons found guilty of high treason,” maintained the petitioner.
He continued that offence of high treason is not an offence under Pakistan Penal Code or under any other law but an offence under Article 6 of the Constitution and therefore, not with the preview of Criminal Amendment Act  which only provides for Amendment of Criminal Law.
“The Criminal Amendment (Special Court) Act 1976 has exceeded the Constitutional mandate under Article 6 (3) of the Constitution of Pakistan and therefore, the said act is in violation of Article 6 (3) of the Constitution as such without lawful authority void and of no legal effect,” contended Sohail Hameed.
He further argued that special court has not been created under any Article of the Constitution and therefore, cannot share the judicial power of superior judiciary as held in Liaquat Hussain case reported in PLD 1999 SC 504.
Therefore, he prayed the court that it may declare that Criminal Law Amendment  (Special Court) Act 1976 is in violation of Article 6 (3) of the Constitution and therefore, void and of no legal effect.
He also prayed that the court may declare that Section 3 of Criminal Amendment (Special Court) Act 1976 to the extent of offence punishable under the High Treason Act 1973 is in violation of Criminal Law Amendment and therefore, without lawful authority, void and of no legal effect.
The petitioner further requested the court to suspend the proceedings before the special court constituted under section 4 of the Criminal Law Amendment (Special Court) Act 1976.
Talking to The Nation, Sohail Hameed Advocate told that his point of view in the petition is that only a constitutional court could conduct the hearing of cases related to constitutional offences.
“The present special court was formed under the law instead of the Constitution. Therefore, it cannot hold the proceedings against Musharraf to try him under Article 6 of high treason,” maintained the petitioner.