ISLAMABAD: The Supreme Court will take up on Tuesday an appeal filed by the former chief justice Abdul Hameed Dogar challenging the Dec 12, 2015, order of the Islamabad High Court (IHC) which had rejected his plea not to implicate him in the fresh probe into the Musharraf treason trial.

The Supreme Court bench that will take up the case will comprise Justices Mian Saqib Nisar, Iqbal Hameedur Rahman and Tariq Parvez.

The genesis of Justice Dogar’s appeal was in fact the Nov 27, 2015 direction by the three-man special court hearing the treason trial against Mr Musharraf that had ordered the investigation team to re-investigate the case by ‘interrogating’ the former dictator, ex-prime minister Shaukat Aziz, Zahid Hamid and Mr Dogar as well as persons who could be presumed to be associated with the commission of the alleged crime.

Being aggrieved of the special court’s order, Mr Dogar through his counsel Iftikhar Gillani instituted a challenge before the IHC with a plea that by passing directions to investigate him, the special court had assumed a suo motu jurisdiction which had not been conferred upon it, adding that the special court through its Nov 27 order had treated him on a par with the principal accused (Mr Musharraf) in utter violation of the law and beyond the jurisdiction of the special court. The high court, however, rejected the plea on Dec 12.

Now in his appeal before the Supreme Court, Mr Dogar contended that he being the former chief justice as well as a judge of the apex court had never been held responsible for high treason in the July 31, 2009, judgment in which the Nov 3, 2007 emergency was declared unconstitutional. Likewise, the apex court did not issue any adverse strictures while deciding a contempt case against him rather he was exonerated from the charges in the Nov 3 emergency case.

The petitioner recalled that after the lifting of the emergency and the restoration of the constitution on Dec 15, 2007, all judges of the apex court who had taken oath under the PCO (provisional constitutional order) took fresh oath under the constitution.

Mr Dogar said that he continued to function during the emergency period from Nov 3 to Dec 15, 2007, till the time he retired on March 22, 2009.

There is no evidence on record to connect him with the alleged crime of imposing emergency, he said, adding that under the principle of ‘trichotomy of power’, as enshrined in the constitution, he as the former chief justice had nothing to do with the functioning of the executive.

It is a well settled law through judgments of the apex court that courts cannot interfere in the working of police or the state investigations, nor can they direct them to include or exclude the names of the accused. Thus, the high court `inadvertently’ overlooked the`bias’ of the special court as without an iota of evidence or material on record, it ordered fresh investigations against him, the petitioner said.

The high court also overlooked the fact that his fundamental right as enshrined in Article 14 of the constitution had been violated by the Nov 27 directions of the special court.

The petitioner recalled that the apex court, through its July 31, 2009 judgment, had already dealt with the matter exhaustively by holding that Mr Musharraf had alone imposed the emergency and issued other unconstitutional and illegal instruments and that no one else was his complicit.

Mr Dogar said the high court had also overlooked the fact that the special court was set up under Section 4 of the Criminal Law Amendment (Special Courts) Act, 1976, for the purpose of trying a complaint forwarded by the federal government, which included a list of the accused with the formal charges of offences committed.

Thus, the special court has no power to order investigation against persons not cited by the federal government since the powers to amend or submit additional statement, at any stage, was conferred on the federal government and not on the special court.

The decision to implicate him without any evidence, was not only puzzling but, probably inadvertently, casting serious aspersions on the superior judiciary as the judges of the superior courts were elevated as chief justices after extraneous considerations and not merely because of their competence and integrity, the appeal regretted.

Published in Dawn, January 16th, 2016