ISLAMABAD - Former military ruler General (Retd) Pervez Musharraf Tuesday moved a petition in the Islamabad High Court (IHC) to challenge the verdict of Special Court, wherein his application to transfer his case under Army Act 1952 to a military court for his trial under high treason charges had been dismissed.
The former president filed the petition through his counsels Dr Khalid Ranjha Advocate, Anwar Mansoor Khan Advocate and Chaudhary Faisal Hussain Advocate in the IHC and cited the Special Court constituted under the Criminal Law Amendment (Special Courts) Act 1976 through its registrar and federation of Pakistan through secretary interior as respondents.
Musharraf stated in the petition when the offence was committed by the petitioner, he was in services of Pakistan Army and the same being "civil offence" rendered it triable under the Army Act 1952.
"Even when an army man 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 read with the notification issued thereto," he maintained.
He argued that of late, Gen Khalid Muneer Khan, Gen Muzaffar Afzal, Gen Khalid Zaheer, and others, who had retired between 2004 to 2008 from the army, were facing prosecution under NAB but were arrayed into active service notionally for being tried under the Army Act for the civil offences. "That Special Court (respondent number 1) has evaded this issue," he contended.
His counsel stated that the Special Court had made an attempt to do indirectly what could not be done directly.
"The successive government from time to time did not consider it a crime and did not take any action to indict the petitioner on that account. The ruling PML-N and its leadership held serious grudge against the petitioner. They have all along been spiteful against the petitioner and wanted to settle their personal scores against him and by prosecuting him under High Treason Punishment Act 1973. This is a glaring example of political vindictiveness and hostility of the sitting government. It smacks of glaring malice on its face," the petition stated.
Musharraf's counsel argued a delayed action by itself spoke for the malice behind it. Amazingly, it was after a lapse of several years that the sitting government preferred a criminal complaint before the respondent number 1, with the prayer to declare the imposition of emergency on 3rd November 2007 and all the steps taken in furtherance thereto as culpable and punishable as high treason.
"Be that as it may, ex facie the alleged acts were committed by the petitioner when he was holding the office in Pakistan Army. By virtue of section 92 of Pakistan Army Act 1952 (PAA) the petitioner remains the subject of the Army Act even after the retirement," said the counsel.
He continued that filing of the criminal complaint by the federal government before respondent number 1 was also coram-non-judice, as there was no decision for filing of the complaint under article 90 or for the trial of the petitioner to the exclusion of all those who were privy to the 3rd November decision.
"Taking the matter at its face value, it amounts to an offence under section 2(2)(iii) of PAA 1952 and by virtue of section 92 of the Pakistan Army Act 1952. Respondent number 1 lacks jurisdiction in this regard. Reference is made upon Section 2(b)(iii) of the PAA 1952," the counsel argued.
The petitioner added that respondent number 1 had brushed aside the provisions of Section 549 CrPC as the same militated against the taking of jurisdiction by the Respondent number 1. The learned Special Court (respondent number 1) has bent backwards to arrogate authority to itself by sweeping aside provisions of Section 549 CrPC. This renders the proceedings totally illegal and unlawful.
Therefore, Musharraf prayed to the court that order dated February 21, 2014 passed by special court might kindly be declared illegal, unlawful and of no consequence.
He further prayed that special court might kindly be directed to take immediate steps under Section 549 CrPC and it might also be directed for not proceeding the trial of the petitioner.