LAHORE: Lahore High Court Chief Justice Sardar Mohammad Shamim on Tuesday constituted a full bench to hear a petition filed by the convicted former president, retied Gen Pervez Musharraf, challenging the establishment of the special trial court and all actions against him starting from the filing of a complaint in the high treason case.

The three-judge full bench headed by Justice Syed Mazahar Ali Akbar Naqvi will resume the proceedings on the petition on Jan 9, 2020. Justice Mohammad Ameer Bhatti and Justice Chaudhry Masood Jahangir are two other members of the bench.

Hearing the petition as a single bench, Justice Naqvi had on Dec 17 referred the petition to the chief justice with a request to form a larger bench to decide the matter.

The judge had observed that important legal issues had been raised in the petition, particularly with reference to the jurisdiction of the filing of the complaint and the constitution of the special court, which required its determination at length.

Three-judge bench to resume hearing on Jan 9

The same day, the special trial court in Islamabad had announced its verdict in the high treason case, sentencing Gen Musharraf to death with a majority decision of two to one.

The verdict has generated a controversy since the trial court’s head Justice Waqar Seth, giving his minority view in Para 66 of the judgement, had ruled, “We direct the Law Enforcement Agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan and be hanged for 3 days.”

Gen Musharraf’s petition, filed through Khwaja Tariq Rahim and Azhar Siddique advocates, argued before the LHC that the trial court had not been constituted lawfully as mandatory approval from the federal cabinet had not been sought for it.

It said that the complaint against former president Musharraf had been filed on the directive of the then prime minister to the then interior secretary for initiation of proceedings who in isolation was directly aggrieved by the act of the petitioner.

It said that the complaint had been filed without adopting procedure qua consultation and approval of the cabinet required under the law and the principle set by the Supreme Court in the Mustafa Impex judgement.

The petition contended that the mandatory procedure as set in High Treason Act, 1973, as well as Criminal Law Amendment Act, 1976, had not been followed in letter and spirit as well.

It said that after perusing the report and comments of the ministries of interior and law annexed to the petition, it had transpired that the very basis of filing of the complaint was not only illegal and without jurisdiction but also in violation of the SC judgement.

It said that the record further revealed that no declaration had been made by the SC that an offence of high treason had been committed in view of Article 6 of the Constitution and a final decision had been left to the federal government.

The petition contended that the matter of jurisdiction with regard to the filing of a complaint, appointment of a prosecution team and the formation of a special court could not be decided by the special court itself, as the trial court was a creation of the Criminal Law Amendment Act, 1976. It said that all legal questions needed to be decided by the LHC.

Published in Dawn, December 25th, 2019