ISLAMABAD - The Islamabad High Court (IHC) on Monday turned down three different writ petitions of former military ruler General (r) Pervez Musharraf.
Justice Riaz Ahmad Khan dismissed the three writ petitions of Musharraf in which he had challenged his trial by a special court, composition of the special court and appointment of Akram Sheikh as a prosecutor in the treason case.
Counsel for Musharraf, Dr Khalid Ranjha advocate, had challenged his trial by a special court instead of a military court. In the petition, he contended that Musharraf imposed emergency and PCO when he was holding the office in Pakistan Army and, by virtue of Section 92 of Pakistan Army Act 1952, the petitioner remains the subject of the Army Act even after his retirement.
The counsel maintained that the special court constituted for Musharraf's trial lacked jurisdiction and only a military court under Section 2 (b) (iii) could try him for the alleged offence. He argued that three generals were implicated in a National Logistic Cell (NLC) corruption scam, but the military court took cognizance of the matter even after their retirement.
Ranjha further contended that the imposition of emergency was not the decision in isolation by the petitioner. “The proclamation of November 3, 2007, was outcome of the discussions and decisions taken during the petitioner’s meetings with the then prime minister, governors of all the four provinces and high command of the military,” he added. He continued that arraigning the petitioner alone was unjustifiable and reflected mala fide and malicious intent of the prime minister.
In his second petition, Musharraf challenged the constitution of a special court through his counsel, Anwar Mansoor Khan advocate, who contended that not only the constitution of the special court but appointment of the judges was ultra vires.
“Under Section 4 of Criminal Law 1976 that was amended in 1977, constitution of a special court is right of the federal government and also appointment of the judges,” he said, but argued that in this particular matter, the federal government requested the Supreme Court of Pakistan to nominate the judges. It is written in the notification of the constitution of the special court that the federal government notified the special court in consultation with the apex court, whereas the law does not provide for consultation, said Anwar Mansoor Khan. He argued that this principle was settled in the Wali Khan case when there were three high courts in the country and now there are five. “Why was the guidance sought from the apex court as the appeal had to be filed in that forum?” he questioned.
The counsel said the former chief justice of Pakistan, Justice Iftikhar Muhammad Chuadhry, had a bias against Musharraf. At this juncture, Justice Riaz Ahmad Khan asked the counsel how can the petitioner say that the former CJP selected the judges for the special court. Khan replied that the CJP had been consulted. “The apex court selected the judges and the federal government notified the judges in a clerical manner,” he remarked.
Mansoor said the notification issued for the constitution of the special court must have been on behalf of the President of Pakistan, a symbol of unity of the federation. “However, a joint secretary signed the notification and there is no mention of the President in it. The cabinet has also not approved the notification and it is from a single man that is the prime minister of Pakistan,” he further argued.
The counsel argued before the IHC bench that in the matter of the high treason act, previously there was no mention of holding the Constitution in abeyance. These words were inserted after the Eighteenth Amendment, so no case could be initiated from retrospective affect, he added.
He continued that Musharraf alone did not impose the emergency. He did it after a thorough consultation. “But my client has been singled out in a vindictive manner,” he maintained.
He said: “The judges selected for this special court are also biased and tilted. Justice Faisal Arab of Sindh High Court, a judge in the special court, had dismissed Musharraf's election petition, while saying that he had subverted the Constitution.
The second judge, Justice Yawar Ali of the Lahore High Court, is a relative of former apex court judge Justice Khalilur Rehman Ramday and he has also links with former CJP Justice Iftikhar Muhammad Chaudhry. The third judge, Justice Tahira Safdar of Balochistan High Court, has always been a staunch supporter of Iftikhar Chaudhry along with her other family members, including her brothers and father.”
Challenging the appointment of Akram Sheikh advocate as a prosecutor in the special court, Anwar Mansoor Khan said a biased person could never become a prosecutor and it has been settled by a Supreme Court judgment in the case of Muhammad Ashraf Gujjar vs Malik Riaz.
At this instance, Justice Riaz Ahmad Khan said the prosecutor is a government servant. Anwar Mansoor Khan said even though he is an employee and paid by the government, he needs to be independent as per the Supreme Court judgment. He said Akram Sheikh met the prime minister and requested him to appoint him a prosecutor. He then issued statements in the electronic and print media against his client. The counsel for the petitioner said Akram Sheikh has a long association with Prime Minister Nawaz Sharif and is against his client, Pervez Musharraf.
After hearing the arguments, the single bench of the IHC reserved its verdict that was announced, later. In the verdict, the court dismissed all the three petitions.
It is pertinent to mention here that the special court to try Musharraf would start its proceedings on Tuesday (today).