Lahore - Country’s top legal experts including Aitzaz Ahsan and former attorney general of Pakistan Irfan Qadir have questioned legality of special court’s verdict handing former president and retired general Pervez Musharraf a death sentence in absentia under Article 6 of the Constitution.
Article 6 of the Constitution says: “Any person who abrogates or subverts or suspends or hold in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance the Constitution by use of force or show force or by any other unconstitutional means shall be guilty of high treason.” The High Treason (Punishment) Act, 1973 provides that the punishment for high treason is death or lifetime imprisonment.
This is the first time in Pakistan’s history that former army chief has been handed a death sentence though the verdict, which is split 2-1, after declaring the ailing former army chief guilty of high treason. At present, Musharraf is hospitalised in the United Arab Emirates due to deterioration of his health.
Barrister Aitzaz Ahsan has put question mark on legality of the trial and conviction of Pervez Musharraf in absentia. However, he termed the decision in accordance with law.
In support of his claim, he argued that the former military ruler committed high treason twice.
In a 1999 coup, Musharraf ousted then-prime minister Nawaz Sharif and came to power. Then he imposed the state of emergency on November 3, 2007. He had imposed a state of emergency and placed several key judges under house arrest across the country.
Referring to the two incidents, Aitzaz elaborated, “Firstly, Musharraf committed high treason, when he was dismissed by then prime minister Nawaz Sharif, who had authority to do so, by arresting the then PM, his whole family, all the chief ministers and ministers, and declared Martial Law in the country.
And later on November 3, he (Musharraf) arrested all the judges.”
However, he was of the opinion, one thing will be arguable whether in absentia, sentence could be announced.
Regarding his right to appeal, Aitzaz said that definitely he had right to file an appeal in the Supreme Court against special court’s verdict but he had to surrender for the purpose. Citing Supreme Court’s judgement, he said that appeal could be filed on ground of conviction in absentia.
On question of fair trial, Aitzaz, who is central leader of Pakistan People’s Party, said that he had surely been given an opportunity of fair trial but he himself fled the country. He called him a ‘coward’ army chief.
Irfan Qadir, who was attorney general of Pakistan during Musharraf era, opined the act imposing state of emergency by Pervez Musharraf was not a case of high treason rather the act was against the constitution. He termed the whole process of Musharraf’s trial and conviction biased.
On March 31, 2014, Musharraf was indicted and in September, the prosecution placed the entire evidence before the special court. However, because of litigation at appellate forums, his trial lingered on and he left the country in March 2016 for medical treatment abroad.
Thus he rightly criticised the legal team representing Musharraf in the special court saying that they could not properly defend their client and only prolonged the proceedings.
He was of the view that Musharraf himself should have faced the trial and informed the court of each and every point in his favour.
He said it was an ex-parte decision and a case of extreme level in which death sentence is granted could not be decided ex-parte.
He said that the 2-1 split decision in itself is doubtful as the opinion of one judge is against the other two members of the three-judge special court.
If implemented, the verdict will make the country’s judiciary controversial, he said. He maintained that it was more controversial than Zulfikar Ali Bhutto’s death sentence case.
Azhar Siddiq, who is representing Musharraf in his petition in the Lahore High Court challenging the special court’s trial, raised a number of legal points on the order. He said, “The judgement passed by special court in Islamabad is not only erroneous but also passed in violation of the right to fair trial Under Article 10 (a) of the Constitution read with Article 4 and 5 as the trial has been concluded in absentia.”
He further stated, “There is no precedent in history that a capital punishment has been awarded but judgement has not been handed over to the accused or his counsel and such order is not sustainable in eyes of law. Under the law the judgement whereby capital punishment is awarded has to be handed over at the same time.”
Now Musharraf’s legal team can appeal special court’s verdict in the apex court which, if upholds the special court’s verdict, the president of Pakistan is constitutionally authorised under Article 45 to pardon a person convicted of death sentence.