ISLAMABAD, May 31: The prosecution in the judges’ detention case is going to submit an incomplete challan in the case before the Anti-Terrorism Court (ATC) on Saturday.

But it is still not clear if the incumbent or retired judges would testify against the former president for allegedly confining them after the imposition of emergency of 2007.

The prosecution has prepared the challan in the case but it has neither included the names of aggrieved judges nor has mentioned them as witnesses.

Special prosecutor of Islamabad police Amir Nadeem Tabish told Dawn that the prosecution side would submit the incomplete challan to the ATC as the investigation in the case is still in progress.

The court might indict Gen Musharraf on the basis of charges leveled under section 7 of Anti-Terrorism Act, 1993 and section 344 of Pakistan Penal Code, he added.

The Secretariat police on August 11, 2009 had registered the judges detention case against the former president Gen (retired) Pervez Musharraf.

The complainant in the case was advocate Mohammad Aslam Ghumman.

The advocate in his complaint said the former president, soon after the imposition of emergency on November 3, 2007, detained 60 judges of the superior courts for over five months in their residence.

Judges ‘not interested’

Sources in the legal branch of Islamabad police said that the FIR did not contain the names of the judges who were kept in wrongful confinement, nor the complainant had ever mentioned their names in any correspondence with the police.

“The Joint Investigation Team (JIT) constituted to investigate the matter last month had requested the registrar of the Supreme Court to provide the names of the judges but without success,” said the sources.

They said that the delay in responding the letter shows that the incumbent judges were not interested in becoming party against the former president.

The sources said that the names of the judges could be included in the challan with their consent only and in such a case they would be subject to cross examination.

“If they stay away from the proceedings then the benefit would go to the accused Pervez Musharraf”, they added.

The legal experts believed that if the judges consented to appear in the witness box they would have to undergo cross examination by the counsel for the former president.

Amjad Iqbal Qureshi, former judge of Islamabad High Court (IHC), said that becoming witness was the right of every citizen including the judges of the superior courts.

Star witness

He says that being aggrieved, the judges are the ‘star witness’ and nobody could testify against Gen Musharraf on their behalf as the criminal procedure code (CrPC), under which the trial court is functioning, does not support exemption of judges or replacing them with the secondary witnesses.

During cross-examination, Mr Qureshi said, the defence counsel would put question to the judges as to why they kept silent for over five years and did not inform the police about their detention soon after they were released.

Senior lawyer Shafqat Mehmood Chohan said that in 2007 the incumbent Chief Justice of Pakistan (CJP) had become petitioner when Gen Musharraf had sacked him.

“If the Chief Justice can become the petitioner then why he or any other sitting judges could not become the witness in the case that directly pertains to them” he said.

Legal circles, however, have different opinion over the cross examination on the judges.

Judges can’t be summoned

Former judge of the Sindh High Court (SHC) Rana Mohammad Shamim said that the judges of the superior courts could not be summoned in the subordinate courts as witnesses.“The judges of the superior courts are never summoned by the subordinate judiciary,” he said adding that it is the responsibility of the local police to produce eye-witnesses and other relevant record to prove the case against Gen Musharraf.”

Ramday’s son ready to appear

Advocate Mustafa Ramday, son of Justice (retired) Khalil-ur-Rehman Ramday (one of the aggrieved judges) on the other hand suggested that the retired judges or any of the family members of the judges who were detained in November 2007 could testify against Musharraf,” he said.

Advocate Ramday said that he along with his father and two and a half year old daughter was also remained under detention and his family is ready to appear before the ATC to record the statement against Gen Musharraf.—Malik Asad