ISLAMABAD, May 23: The Supreme Court dampened the excitement of many when it said on Thursday that it was not the court of competent jurisdiction to order prosecution of former president retired Gen Pervez Musharraf under treason charges for sacking superior court judges and proclaiming emergency on Nov 3, 2007.

“The High Treason (Punishment Act) 1973 constitutes a special court for holding a trial under treason where all kind of defence will be available to Gen Musharraf and that the Supreme Court is not a court of competent jurisdiction,” observed Justice Ejaz Afzal Khan, a member of the three-judge bench hearing a set of petitions seeking initiation of a high treason trial against Mr Musharraf.

The bench is headed by Justice Jawwad S. Khawaja.

Justice Khan said the innocence or guilt of the former military ruler could not be decided on the basis of observations made in the July 31, 2009 judgment of the apex court which had held the Nov 3 emergency unconstitutional.

The observations had only held Mr Musharraf liable to be prosecuted and punished and were not meant for the purpose of trial, he said, adding that unless the former president was proceeded against and tried under due process he could not be held guilty for treason.

Under the procedure, the federal law ministry constitutes a special court comprising three high court judges to prosecute a person accused of committing treason under the Criminal Law Amendment (Special Court) Act 1976 after the interior secretary, who was authorised under an SRO of 1994 as focal person, files a complaint on treason charges.

The court made the observations in response to arguments by Advocate A.K. Dogar, one of the petitioners, who cited the 2012 Azhar Siddiq case in which former prime minister Yousuf Raza Gilani had been disqualified by the apex court from holding a seat in the National Assembly and emphasised that the 14-judge bench which had delivered the July 31, 2009, verdict was a court of competent jurisdiction.

He then asked whether or not the apex court would be a competent court to decide about Mr Musharraf’s prosecution in the light of the findings that he had subverted the constitution by proclaiming the emergency.

Justice Khilji Arif Hussain said the case of Mr Gilani was distinguishable from that of Mr Musharraf. Mr Gilani was disqualified on the grounds that after his conviction by a seven-judge bench of committing contempt of court, the National Assembly speaker should have sent the matter instantly to the Election Commission to de-notify his membership instead of giving a ruling to protect him from losing his seat. But Mr Musharraf’s was a case of first impression because the former military ruler had not been prosecuted in any court of law, he said.

“It is for that court (special court) to take cognizance and I do not know whether that court would ignore or take into account the apex court’s July 31 verdict,” Justice Khilji observed.

“These observations have put me on thinking whether my submissions are correct or incorrect and whether I am right or wrong,” Advocate Dogar retorted.

Justice Afzal Khan said the observations were only tentative in nature and not final and that the court was sitting with open minds to hear arguments about Mr Musharraf’s conviction under treason charges.

The court also put to rest speculations doing the round these days that Mr Musharraf would leave Pakistan even before the incoming government assumes power.

Advocate Ahmed Raza Kasuri, representing Mr Musharraf, said he had met the general on Wednesday and could categorically state that he had no intention to leave the country, adding that it was now up to the new government whether it wanted to prosecute him or not.

Justice Khan pointed out that there was no prayer in the petition being pleaded by Advocate Dogar for the establishment of a trial court to try Mr Musharraf under treason charges. “Does the court want prayers from me,” Mr Dogar asked.

Justice Khawaja asked that when Mr Musharraf had proclaimed the Provisional Constitution Order in the capacity of the army chief did he report it to the defence secretary since under the constitution the army chief was a subservient officer.

“You are seeking an order from the apex court to direct the interior secretary to lodge a complaint and the law ministry to set up the special court,” Justice Khilji asked Advocate Dogar.

The court will take up the case on June 3.