ISLAMABAD - The Special Court is strengthening grip on the General (retd) Pervez Musharraf high treason case as on Friday it dismissed the former dictator’s petition on constitution of bench , biasness of judges , and why he has been singled out.
The court on February 21 had already rejected the defence application to transfer Musharraf case to military court under the Pakistan Army Act 1952 because at the time of Proclamation of Emergency, on November 3, 2007, he was in army uniform.
The court after hearing the defence team and prosecutors’ arguments for about two months on February 19 had reserved the judgment on the bias and constitution of Special Court. Justice Faisal Arab, President Special Court, read out operating part of the 27-page order, which said: “We find no merit in Criminal Miscellaneous Application No.3 and dismiss the same.”
Pervez Musharraf’s lead counsel Anwar Mansoor, in the application, had raised three issues - constitution of bench , biasness of judges , and why he has been singled out, while the Emergency was promulgated on the advice of the then Prime Minister, Chief Minister, Governors, Chairman Joint Chief of Staff Committee, Chiefs of Armed Forces, Vice-Chief of Army Staff and Corps Commanders.
Anwar Mansoor’s arguments were that Proclamation of Emergency was not an act of the accused (Musharraf) alone, but was an outcome of a consultative process. He contended the instant case initiated against Musharraf as Prime Minister Nawaz Sharif and the former Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry were inimical towards the accused, this act on their part was biased and tainted with malice.
The court ruled that the involvement of any other persons in the Proclamation of Emergency would depend on the evidence, which would come on record.
Faisal Chaudhry, one of the counsels of ex-COAS talking to media said: “The judgment has made it clear that those involved in 3rd November emergency will also be in trouble.”
Regarding notification for Special Court, the defence stance was that it was issued by an incompetent person, therefore, failed to fulfill the legal requirement. The court said the authority to prosecute a case filed under High Treason (Punishment) Act 1973 lies with the Interior Division. The authorization is in addition to the authorization granted to the Secretary Ministry of Interior under SRO 1234(1)94 dated 29-12-1994, it added.
“We are clear in our minds that as long as SRO 1234 is in the filed it is not necessary at all that every time when a complaint is to be filed, fresh authorization is required to be issued,” the order further said.
In response to Anwar Mansoor argument that the prime minister ought to have chosen the judges for Special Court from the list of the serving judges of the High Courts instead of seeking nominations from the ex-CJP. The court ruled that the correspondence between the Law Secretary and the Registrar Supreme Court disclose that the judges were nominated by the Chief Justices of High Courts and not the former Chief Justice of Pakistan.
The court also rebuffed defence objection of judges’ biasness. Anwar Mansoor had contended that Justice Faisal Arab, judge of Sindh High Court, did not take oath under PCO as it considered it to be violation of Constitution, therefore cannot remain impartial to decide the present complaint, while others two judges of the Special Court, Justice Tahira Safdar and Justice Yawar Ali, were appointed due to the former CJP.
About Faisal Arab, the defence other argument was that he had dismissed Musharraf election appeal on 15th April 2013. The order ruled that Musharraf election appeal was decided in a summary proceedings arising from the order of the Returning Office, where the nomination papers of the accused were rejected.
Regarding Justice Tahira the defence raised objection that she took part in the rallies for the re-instatement of Justice (retd) Chaudhry. The order said she was appointed as Civil Judge in 1982 and has been continuously in service and for that Anwar Mansoor had withdrawn the objection.
About Justice Yawar Ali, a judge of LHC, appointment’s as member of Special Court the defence stance was that LHC Chief Justice had recommended dropping his name to make him permanent judge of the Lahore High Court. But the Judicial Commission due to Justice Chaudhry approved his name.
The order said the contention of defence is misconceived in view of the Supreme Court judgment in case of Munir Hussain Bhatti vs Federation, which states chief justice LHC never gave any advice in writing to drop the name of Yawar Ali.
The court said: “The objection as to the disqualification of a judge on the ground of bias would only be sustainable when it is demonstrated that the judge has any interest in the proceeding by way of some gain or detriment in the outcome of the proceedings.” “No animosity is attributed to any of the members of Special Court against the accused (Musharraf) rather only an apprehension of bias is alleged on certain grounds, which in fact do not attract any rule of disqualification.”