ISLAMABAD - The Special Court Thursday issued its detailed judgment in high treason case against former army chief general (r) Pervez Musharraf saying that he persistently and stubbornly strived ever since the commencement of this trial to delay, retract and in fact evade it.

Musharraf was tried in absentia for high treason and handed death sentence under Article-6 of the Constitution on December 17 through a short order.

A three-member Special Court headed by Chief Justice of the Peshawar High Court (PHC) Waqar Ahmed Seth, Justice Nazar Akbar of the Sindh High Court (SHC) and Justice Shahid Karim of the Lahore High Court (LHC) convicted him with a 2-1 split judgment. Justice Nazar Akbar dissented with the majority judgment.For the first time in Pakistan’s history a military chief has been declared guilty of high treason and handed death sentence.

The detailed judgment comprising 169-page said the court has found the accused guilty and it ordered for hanging the former General-President.

Justice Waqar, who authored the judgment, also wrote that they direct the law enforcement agencies to make best efforts to apprehend Musharraf and ensure the punishment “and if found dead, his corpse be dragged to D-Chowk, Islamabad and be hanged [there] for three days.”

Justice Shahid Karim endorsed the capital punishment but did not concur with the portion of ‘dragging Musharraf’s corpse’. “I have read the judgment of the President of Special Court (Justice Waqar) and concur with the findings and punishment, except the para 66 (which deals with dragging Musharraf’s body to D-Chowk),” he wrote.

Judgment

The judgment said that the Special Court has generously granted numerous opportunities to join the trial. His convenience was acceded to when the presence of the accused was dispensed with after framing of the charge, yet the accused opted to become a fugitive from law. However, it has been the plea of accused throughout that either on account of ill health or for security hazards he could not reach up to this Court to face the trial.

The detailed verdict said that the trial of High Treason is the requirement of the constitution against all those individuals who undermines or attempts to undermine the constitution by any means. It stated that indeed, the portion of the judgment and execution of the sentence is nowhere defined, “but since it is first impression case and the sentence of death is announced in his absence after declaring the convict as proclaimed offender therefore the sentence is supposed to be executed and in case of his death a question would arise as to the mode of executing the sentence, therefore that mode of execution.”

The judgment said that this Court after presentation of undeniable, irrefutable and unimpeachable evidence by the prosecution against the accused reaches to the conclusion that indeed the accused is guilty of high treason and deserves exemplary punishment.

It added, “It is our considered view that the accused in the high treason case has been afforded more than his due share of fair trial. The protected trial of a constitutional and not any ordinary offence that began six years ago in 2013, has yet to see its end in 2019.”

The accused, who has been given every opportunity to defend himself, has by his conduct in the proceedings only evinced his utter contempt for the law and the legal institutions in this country. The facts of this case are well documented. The documents clearly demonstrate the guilt on the part of the accused. It proves beyond a shadow of reasonable doubt all the charges of high treason levelled against accused by the State.

 

 

Action against ‘fugitive’s facilitators’

“It is patent by the act and conduct of the accused facing trial, that he has persistently and stubbornly strived ever since the commencement of this trial, to delay, retract and in fact evade it. It has been his plea throughout that either on account of ill health or for security hazards he could not reach up to this Court to face trial,” said the judgement.

“If for a moment it is presumed that military high command including Corps Commanders were not involved then why they failed to defend and protect the Constitution of the Islamic Republic of Pakistan, 1973 by not restraining a man in uniform […] the then Corps Commanders Committee in addition to all other uniformed officers who were guarding him each and every time, with boots on, are equally and fully involved in the act and deeds of the accused person,” says the judgement.

 

 

Conviction of accused

“The trial of high treason is the requirement of the Constitution against those individuals who undermine or attempt to undermine the Constitution by any means. This court after presentation of undeniable, irrefutable and unimpeachable evidence by the prosecution against the accused reaches to the conclusion that indeed the accused is guilty and deserves exemplary punishment.

“As a necessary corollary to what has been observed we find the accused guilty as per charge. The convict be hanged by his neck till he dies on each count as per charge,” says the verdict.

“[Para 66] We direct the law enforcement agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan and be hanged for 03 days.

“Indeed, this portion of the judgement and execution is nowhere defined but since it is first impression cases and the sentence of death is announced in his absence after declaring the convict as proclaimed offender therefore the sentence is supposed to be executed.

“It would be in the interest of justice that all those involved (if any) in facilitation of the escape of the fugitive accused may also be brought in the net of due course of law and their criminal acts (if any) may be investigated and tried in accordance with law.”

 

 

Aider and abettors of crime

The judgment noted that the original complaint no.1 was filed after proper investigation by FIA, but the latter application for adding three persons - former Prime Minister Shaukat Aziz, ex-federal minister for Law Zahid Hamid and ex-CJP Abdul Hameed Dogar - was made without doing any investigation against these persons.

It noted that a course of action against the aider and abettors has been prescribed in the Act, 1976. It said that the government is at liberty to file separate complaints against the named persons and others, and questioned why only these three persons were named and not others.

Regarding the application for summoning PW Azam Khan, senior officer Joint Investigation Team, the court noted that it seemed to be an afterthought as the prosecution had closed its evidence on 18-09-2014.

The learned counsels for the prosecution and the defence in the last hearing, instead of arguing the case, again filed application for adjournment. The judgment said that the purpose of filing application was to delay the decision therefore it was dismissed.

Lastly, when the defence counsel was again directed to argue the case on merit, he refused rather left the rostrum, thus being left with no other alternative “we (court) have perused the entire record and the written arguments submitted by the earlier prosecution team”.

 

 

Reliance on special law

The judgment said that it is indeed celebrated principle that a Special Law prevails over general law, reliance is placed on Syed Mushid Shah vs federal Investigation Agency’s case; thus Section 366(2), 512(1) CrPC would give way to Section 9 of the Act.

The ordinary sessions trial would halt on wilful absence of the accused, as a judgment cannot be pronounced in absence of accused u/s 366(2) CrPC, yet Section 9 of the Act is couched in such words as to lead to the conclusion that the legislature had visualized the present scenario where the accused is evading the due process of law by wilfully absenting himself. Such being the case, the command of Section 9 of the Act is to continue the trial and reach it to its logical ending.

The judgment said that in Lahore High Court Bar Association vs General (r) Pervez Musharraf’s the Supreme Court had while making reference to Section 9 of the Act directed this Special Court to continue with the trial irrespective of the absence of the accused. Thus the Court proceeded with the matter and decided the fate of the trial.

The judgment said that the accused has not denied the imposition of emergency, the proclamation order, prescribing a novel oath for the judges of the superior courts and his speech on the eve of the emergency.

However, Musharraf presented the defence; that there were compelling circumstances justifying these acts. These circumstances were the upsurge in terrorist activities, complete breakdown of the government machinery on account of arbitrary interference of courts under the grab of judicial activism and the poor state of economy.

Second defence plea is that it was not the voluntary act of the accused. He was advised so by the cabinet, the Prime Minister and by key leaders of the state institutions.

 

 

The judgment said that in “our country, during 72 years of its independence, to our misfortune several times, the constitutions framed by legislative bodies were desecrated. Sovereignty of people was not allowed to flourish and get deep-rooted in the polity of our country. Prior to 3rd November, 2007, the Constitutions were either abrogated or put in abeyance and the democratic system of governance was put to an end”.

For the first time, the Constitution 1956 was abrogated on 7th October, 1958, and Martial Law was imposed by President Iskandar Mirza, who dismissed the Central and Provincial governments, dissolved the parliament and the National and the Provincial Assemblies.

On 25th March, 1969, General Agha Muhammad Yahya Khan abrogated the Constitution of 1962 and promulgated Martial Law. On 5th July, 1977 once again Martial Law was imposed and the Constitution was put to abeyance. Justice Waqar wrote, “Had the superior judiciary, at that time, not introduced the ‘Doctrine of Necessity’ and had proceeded against the usurpers, abrogaters, subvertors, the nation would not have seen this day at-least, where an officer in uniform repeats this offence.

The judgment further ordered to keep the record inclusive of the case properties under lock and key with the registrar of the court till further orders.

 

 

 

 

Dissenting Note

Justice Nazar Akbar, who did not concurred with the majority judgment, wrote in his dissenting note that Musharraf imposed emergency in the country on 03-11-2007. The parliament in April, 2010 had introduced the suspending constitution in the definition of high treason. Until that time the definition of high treason was restricted to the acts of ‘abrogation’ and ‘subversion’.

He noted that the new prosecution team comprising Ali Zia Bajwa and Munir Hussain Bhatti seemed to have not even read the order sheet of the present proceeding to rebut or raise objection on these two points of defence. Strangely enough even the defence team seemed to have forgotten that they have to press their plea of retrospective effect of amendment and wilful discrimination by the prosecution to single out their client to prosecute him for an offence of High Treason, which by its design is such act that it cannot be committed by an individual single handedly. Both the prosecution and the defence teams were competing with each other to win an adjournment to ensure that the trial should not conclude come what may.

Regarding the plea of the accused of having issued proclamation after the situation was reviewed in the meeting with the Prime Minister, Governors of all Provinces and the other Army Officers, he stated the burden of proof was on the prosecution to show that it was an individual act of the accused.

Justice Nazar Akbar said, “In my humble view, the entire cabinet of Prime Minister Shaukat Aziz and all others civil and military establishment along with parliament were on board to accomplish the task of retaining the political office of the President of Pakistan General (retd) Pervez Musharraf under National Reconciliation Ordinance.

“All the actions of 3rd November, 2007 were political actions of the civil government headed by the President as ceremonial head who alone was both the civilian and military command-in-chief of armed forces with Shaukat Aziz as chief executive.

“[Counsel] has failed to appreciate that on the date of offence except ‘abrogate’ and ‘subvert’ no other act of any person was considered as an office under Article 6 of the Constitution. Only the act of ‘abrogation’ and ‘subversion’ of Constitution was considered as an act of high treason. The words ‘suspension’ and ‘abeyance’ were not used in the language of Article 6 of the Constitution until 20.4.2010 when [they] were introduced through the 18th Amendment almost after two and a half year to the date of alleged offence of high treason.”