ISLAMABAD - Former president Pervez Musharraf promulgated emergency on the advice of the then prime minister and after consulting all the governors and members of the army top leadership.

Farogh Naseem, counsel for the ex-army chief, argued before the three-judge special court, headed Justice Faisal Arab, and comprising Justice Tahira Safdar and Justice Yawar Ali, which was hearing the high treason case.

The statement issued by Musharraf also says, “The emergency imposed vide order dated November 3 was on the advice of the then prime minister Shaukat Aziz and in pursuance of the deliberations and decisions of the meetings with the stakeholders named through their designations in the imposition of emergency order. Later, this action received endorsement by the then National Assembly through a resolution. It is important to note that till to date none has denied this assertion.”

The learned counsel pleaded the proclamation of emergency was a public document, published in the law reports, adding as per Qanun-e-Shahadat a presumption of truth of contents of the gazette was in the field. “The accused (Musharraf) has, therefore, sufficiently discharged the tactical or prima facie burden of proof and the ultimate or legal burden to disprove the same now rests upon the prosecution.”

He said in view of the Special Court’s 7th March 2014 order, sufficient material was on record to pass order implicating the co-accused. He further argued that in accordance with the international jurisprudence there could be no selective prosecution of Musharraf. “Even Article 12(2) of the Constitution requires a trial under Article 6 with effect from 23.3.1956,” he pleaded.

At the onset of the proceedings, Farogh Naseem requested the court to take up their application No 12/2014 wherein it was prayed for the disclosure and supply of copies of inquiries/investigation report of the FIA, which was the foundational basis of the complaint itself. He pointed out that on the March 7 order, the court had held, “The involvement of any other person in the proclamation of emergency depends on the evidence which would come on record.”

He contended that to bring such evidence on record, the first step was to require the prosecution to produce the FIA report which had clearly contained a dissenting note by one of the team members, Hussain Asghar, that Musharraf alone should not be tried and that his abettors should also be made co-accused.

Dr Naseem said in the complaint itself many references were made to the FIA report which was the basis of the complaint and could not be withheld. Referring to the various provisions of the Constitution and Section 265(c) of CrPC, he argued that the requirement of a fair trial, due process and access to justice mandated the disclosure of the FIA report.

Akram Sheikh argued that the law did not require disclosure of the FIA report, so he would not disclose the same to the accused unless otherwise directed by the court. “The law does not permit me to do anything which is above the law,” Sheikh said, adding they could not hand them over a Kalashnikov and hand grenade.

He said the documents mentioned by the defence counsel would be supplied to the accused at a proper time. He said Anwar Mansoor had received 150-page documents, including the complaint on behalf of the accused (Musharraf) in January.

Regarding the names of the others also involved in the 3rd November emergency, Akram Sheikh said: “This is not the case of oral, but of the documentary evidence.”

Earlier, Farogh Naseem pointed out that the order on the appointment of Akram Sheikh as a prosecutor had been reserved on March 26, 2014, and the court on March 27 had said that before recording evidence, application in that regard would be decided. The court said such order shall be announced on Friday (March 18). The case was adjourned till today (Wednesday).