ISLAMABAD  -    The Special Court hearing the high treason case against former military ruler General (retd) Pervez Musharraf on Thursday summoned him on May 2 for examination under Section 342 of Criminal Procedure Code (CrPC).

A three-judge bench of the Special Court presided over by Justice Tahira Safdar said that it has prepared questions for Musharraf’s examination.

“In view of the statement made by the learned counsel, an opportunity is granted to the accused (Musharraf) to make his appearance before the Court for his examination on 2nd of May, 2019,” stated the short order adding, “The questions to be asked while examining the accused have been prepared.”

The Special Court also directed to supply a copy of questions to the counsel for Musharraf in order to enable the accused to prepare defence.

The bench observed that this court will pronounce appropriate order in case Musharraf fails to appear before the court for recording his statement.

It was directed on the last date of hearing that mode of conducting the examination of Musharraf as required by Section 342 Cr.PC has to be determined.

During the course of arguments, Advocate Salman Safdar appearing on behalf of Musharraf was with the statement that his client intends to appear physically before the Court and not opted to record his examination through video link.

He further submitted that he being the counsel also not opted to give answers to the questions on behalf of Musharraf.

However, he sought time to have telephonic contact with his client in order to specify a date for his appearance before this Court for recording of his examination under Section 342 CrPC.

Thus, an opportunity was granted to the counsel and when the Court reassembled, Advocate Safdar made categorical statement before the Court that his client is committed to appear before the Court for his examination on a date in May.

He also requested that the case be fixed for May 13 for the purpose.

Justice Safdar observed that bench availability will not be possible due to the month of Ramadan. Therefore, the Special Court fixed May 2 as next date of hearing.

Earlier during the hearing, Advocate Safdar also submitted an application for acquittal of Musharrarf.

He argued for acquittal of Mushrraf on the grounds that the Federal Government failed to follow the mandatory procedure for filing a complaint for the offence of High Treason.

He raised a question on the jurisdiction of Special Court and also contended that even otherwise, the case against Musharraf is one of no evidence.

The counsel for Musharraf in application for acquittal contended that neither any offence was made out nor did any incriminating material surface against Musharraf.

“The Prosecution’s failure to establish the offence of High Treason makes it fundamentally clear that the instant case is groundless and is based upon malicious charges,” the application stated.

It has been contended that following a careful examination of the record, it has come to light that the procedure governing the manner in which the Complaint of High Treason was to be instituted against Musharraf was not complied with.

“The mandatory provisions of Section 5(1) of the Special Courts Act, 1976 read with Section 3 of the High Treason Act, 1973 were blatantly violated.”

The Federal Government, by failing to follow the mandated procedure laid down in Section 5(1) of the Special Courts Act, 1976 read with Section 3 of the High Treason Act, 1973, lodged the Complaint against the Applicant in an unlawful manner. Therefore, the Complaint against the Applicant is void ab initio.

The law clearly prescribes through Section 5(1), Special Courts Act, 1976 that this Court shall only commence proceedings once a complaint of High Treason is competently filed by the Federal Government.

The application contended that the Supreme Court in the case of Mustafa Impex, held that the Federal Government consisted of the Prime Minister and the Federal Ministers and the term Federal Government for all intents and purposes means the Cabinet of Federal Ministers.

It argued that the Complaint could only have been competently filed against the Musharraf if it had been signed by the Federal Cabinet.

“However, the Federal Cabinet neither forwarded the Complaint to this Honourable Court, nor authorized any person to file the Complaint. Quite contrarily, it appears that the Prime Minister, acting on his own, unilaterally authorized the Complaint without any consultation or discussion with the Federal Ministers.”

“Consequently, since the Complaint was never filed by the Federal Cabinet, it was filed in an illegal and unlawful manner, is void ab initio, and of no legal effect, thereby entitling the Applicant to the relief of summary acquittal.”

Given that the Complaint has been filed in an unlawful manner, the application pointed out, this court was not vested with the jurisdiction to take cognizance of the Complaint.

“In the absence of jurisdiction, the entire superstructure upon which the case against the Applicant rests breaks down. Moreover, as the issue of jurisdiction goes to the very heart of the case against the Applicant, it would be against the mandate of justice and fairness to proceed with the Applicant’s case without the question of jurisdiction first being resolved.”

“It is a settled position that he who comes to equity must come with clean hands.  The instant criminal prosecution has been initiated without lawful authority, with ulterior motive, and malafide intentions.”

“In sheer violation of the law that governs a trial of High Treason, requisite permission and approval of the Federal Cabinet has not been sought prior to filing of the Complaint.”

“The malafide intent and unfairness in the initiation of criminal proceedings is also quite evident from the fact that Prosecution quite unfairly, objectionably and abusing power authority and prosecutorial discretion singled out the Applicant and indicted him to face baseless and groundless charges.”

“The conduct of the investigation and prosecution speaks volumes that discretion and authority has been exercised in a colourable manner which itself violates the concept of Fair Trial as guaranteed under Art 10 of the Constitution  of Islamic Republic of Pakistan.” 

The application prayed that the Complaint before this Court be declared void ab initio and acquit Musharraf.

The bench, however, observed that the application for acquittal will be heard at a later stage and respondents will be issued notices after deciding its maintainability.