LAHORE - The Lahore High Court (LHC) on Monday issued the detailed verdict in a petition filed by former president Pervez Musharraf declaring the formation of a special court to hear high treason case against him as unlawful and beyond the constitutional mandate.
A three-member LHC earlier declared as unconstitutional the formation of the Special Court which had heard the high treason case against Musharraf and handed him a death sentence after finding him guilty.
The bench was headed by Justice Sayyed Mazahar Ali Akbar Naqvi and consisted of Justice Muhammad Ameer Bhatti and Justice Chaudhry Muhammad Masood Jahangir. The bench ruled that the formation of the special court was not made according to the Constitutional and legal requirements.
The detailed verdict was issued by Justice Mazahar Ali Akbar Naqvi.
The full bench in its unanimous verdict said that Article VI could not be enforced from past. The bench also expunged clause (ix) of the Criminal Law Special Court (Amendment) Act 1976.
The court decided the matter in favour of the petition in view of facts and circumstances put forth before the judges by counsel for the petitioner, amicus curiae and the additional attorney general for Pakistan and the petition’s close scrutiny/examination.
Paragraph 21 of the LHC order says, “It is established without an iota of doubt that very basis of initiation of proceedings against the petitioner/General (R) Pervez Musharraf, since its inception to the culmination are beyond the constitutional mandate, ultra vires, coram-non-judice, unlawful, hence, any superstructure raised over it shall fall to ground.”
As per paragraph 23 of the order, the full bench “unanimously decide the lis in the following terms for the reasons to be recorded in detail later on:-i) That non-obtaining of approval for filing the complaint and constitution of special court in terms of Section 4 of the Criminal Law Amendment (Special Court) Act, 1976 is violative of law, as well as, devoid of legal sanctity.”
The order further says, “That the notification dated 29.12.1994 though was issued by the competent authority but it remained un-amended for its application regarding the substantive law contained in Section 3 of the High Treason (Punishment) Act, 1973 and Article 6 of the Constitution amended through the 18th amendment.
It maintains “that the amendment in Article 6 of the Constitution of Islamic Republic of Pakistan, 1973 introduced at a belated stage through 18th amendment cannot be given retrospective affect to constitute an offence purportedly committed much earlier, which is against the spirit of Article 12 of the Constitution.”
“That Section 9 of the Criminal Law Amendment (Special Court) Act, 1976 qua trial in absentia is declared as illegal, unconstitutional being repugnant to injunctions of Islam, as well as, Article 2-A, 8 and 10-A of the Constitution of Islamic Republic of Pakistan, 1973,” the paragraph concludes.
The order also “The concept of State, in ordinary sense relates to noblest work of man; but man himself free and honest is, I speak of this word as noblest work of God” said by Justice Wilson. Practically, the concept of State cannot be considered subordinate to the people but let everything else be subordinate to the State; hence, State in all eventualities is complete body of free persons united together for their common benefits, to enjoy peacefully what is their own and to do justice/fair-play to others.”
On December 17, 2019, the Special Court in Islamabad convicted Pervez Musharraf for high treason and handed him death penalty on five counts in a 2-1 split decision.
The case was filed by the PML-N government against Musharraf for declaring state of emergency in the country and suspending the Constitution on November 3, 2007.
