ISLAMABAD - The Supreme Court on Tuesday returned former President General (retd) Pervez Musharraf's appeal against the Special Court 's 21st February order with objections.

The Special Court , headed by Justice Faisal Arab of Sindh High Court and comprised Justice Tahira Safdar from Balochistan High Court and Justice Yawar Ali of Lahore High Court, had dismissed Musharraf's application seeking trial by military court under the Pakistan Army Act 1952.

The SC Registrar office raised objections that only the final judgment and not the interlocutory order of the Special Court could be challenged in the Supreme Court. It also said that unnecessarily the Special Court had been made party in this case, while the language of the appeal is also not clear.

Musharraf also challenged the Special Court 's 21st February order before the Islamabad High Court vide petition No. 3608/2014, but the IHC returned the same with the objection that under section 12 (3) of Special Courts Act 1976, the petitioner should prefer appeal before the SCP.

The Section 12(3) says; "Any party aggrieved by the final judgment of the Special Court may prefer an appeal to the Supreme Court within thirty days of the passing of the judgment."

Sharif-ud-Din Pirzada, Dr. Khalid Ranjha, Anwar Mansoor and Barrister Muhammad Ali Saif, who had filed the petition on behalf of the retired general, pleaded that at the time when the offence was committed Musharraf was in service of Pakistan. The same being "civil offence" renders it triable under the Army Act 1952.

"Even where an army personnel retires he can be called back not only in active service and made to undergo trial under the Army Act 1952 by operation of Section 7 of the Army Act."

They referred the cases of Gen. Khalid Muneer Khan, Gen. Muzaffar Afzal and Gen. Khalid Zaheer and others who had retired between 2004 to 2008 from army and facing prosecution under NAB were called into active service under Section 7 of the Pakistan Army Act and are now facing trial. However, the Special Court has evaded this issue and it has made an attempt to do indirectly what could not be done directly.

The petitioner raised the objection before the Special Court that as far as the offense of high treason is concerned, the parliament is, by law, required to provide for the punishment of the persons found guilty of high treason.

Musharraf contended that the Special Court had bent backwards to arrogate authority to itself by sweeping aside provisions of Section 549 CrPC which renders the proceedings totally illegal and unlawful.

The petitioner stated it is not a constitutional offence but an offence under High Treason Punishment Act, 1973, Criminal Law Amendment (Special Court) Act, 1976 is as an ordinary law as the Army Act, 1952, the Criminal Amendment (Special Court) Act, 1976 is not High Treason specific alone.

The decision of 3rd November 2007 for all intends and purposes, was taken by the government of the day. The decision at best and at worst was the departure from Article 209 of the Constitution. "The governments many times act in disregard of constitutional provisions and so do the members of judiciary and a government cannot be arraigned by a subsequent government under Article 6 on that account."