ISLAMABAD - Two weeks after the retirement of Justice (r) Iftikhar Muhammad Chaudhry, former President Pervez Musharraf on Monday challenged the July 31, 2009 SC judgement that had paved the way for high treason case against him.
The former military dictator in the review petition against the July judgment, in which findings were given against him, has prayed the Supreme Court to set aside the verdict in the interest of justice.
“The judgment was coram non judice, per incurium, void, unlawful and has been passed in violation of the principal of justice and thus legally not sustainable and also there are floating mistake and error apparent on the face of the judgment and as such it is liable to be reviewed,” the petition said.
Musharraf filed the Civil Review Petition under Article 188 of the constitution read with Order XXVI Rule 1 of Supreme Court Rules, 1980. The review petition has been filed after about 4 years and 5 months, therefore application for condonation of delay is separately filed, relying on the law laid down in Nawaz Sharif vs State (PLD 2009 SC 814) and the Federation vs Nawaz Sharif PLD 2009 SC 531.
The review petition described the events from the appointment of Justice Iftikhar as Chief Justice of Pakistan and Proclamation of Emergency and the restoration of the judges of the higher judiciary. It was stated that due to bias against Musharraf the July 2009 judgment was passed, but no direction was given in the binding and operative part of the judgment for prosecution under high treason against him.
It was argued in the petition that Musharraf was an elected president and being the president of Pakistan he administered the oath to Prime Minister Yousaf Raza Gilani and the cabinet members. It was stated that in the judgment his election and that of his successor and taking oath by him was declared lawful.
Pervez Musharraf prayed that July judgment and its findings would prejudice his case before a three-judge Special Court, constituted by the federal government for his trial under Article 6, as the prosecution would rely on this judgment. The July judgment was against the principle of the natural justice as Musharraf was condemned unheard and Iftikhar Chaudhry became judge of his own cause.”
Musharraf lawyers contended that though the SC declared November 3, 2007 act of Musharraf un-constitutional yet in the operative part of the order it did not mention that he should be prosecuted under high treason because holding in abeyance of constitution was not considered an offence of high treason even in the case of General Ziaul Haq and Musharraf’s act of October 12, 1999. The petition stated that the words of ‘holding in abeyance’ were included in the Article 6 of the constitution through 18th Amendment, therefore July 31, 2009 judgment was silent about the prosecution of Musharraf under high treason.
It was stated that in both the petitions – Nadeem Ahmed vs Federation and the Sindh High Court Bar Association, filed after the reinstatement of the Justice (r) Iftikhar and other judges, Musharraf was not made a party. Musharraf contended that when the attorney general and the federation did not defend him therefore the apex court issued notice to him to his residential address for appearance on July 27, 2009, whereas it was in the knowledge of everyone that he was not in Pakistan at that time.
Later, the process serving officer was deputed to deliver the copy of the notice at Musharraf residential address at C-1-B, Park Road, Chak Shahzad, Islamabad. The said process officer reported back that he went to that address and person present there namely Muhammad Hussain son of Amer refused to receive the notice.
After that no substitute service was made and the hearing continued without adding or impleading Musharraf as party to the proceedings of formally passing an order for ex-parte proceeding.