LAHORE: The Lahore High Court (LHC) on Monday declared unconstitutional all actions taken by the previous government against former military ruler Pervez Musharraf, including the filing of a complaint on high treason charge and the formation of a special court as well as its proceedings, leading to the abolition of the death penalty handed down to him by the trial court on Dec 17.

A three-judge full bench also set aside Section 9 of “Criminal Law Amendment (Special Court) Act, 1976” for being violative to fundamental rights and ruled against retrospective effect given to an amendment in Article 6 of the Constitution, which deals with high treason, to try retired Gen Musharraf for an offence that was not an offence on the date of its occurrence.

The section puts restriction on adjournments and allows the special court to proceed with the trial ‘even in the absence of any accused’ after taking necessary steps to appoint an advocate to defend the accused.

The bench, headed by Justice Syed Mazahar Ali Akbar Naqvi, announced a short order, allowing a writ petition by the former military ruler challenging multiple actions against him right from the initiation of the high treason complaint and its outcome.

Reasons will be given in a detailed order to be issued later.

Declares trial by special court unconstitutional, rules against retrospective effect given to an amendment in Article 6 that deals with high treason

Justice Mohammad Ameer Bhatti and Justice Mohammad Masood Jahangir were other members of the bench.

Earlier in the day, Additional Attorney General Ishtiaq A. Khan submitted before the bench a summary about the constitution of the special court and all other relevant record of the case.

Responding to several queries of the bench, the additional AG contended that the matter regarding initiation of the high treason case and formation of the special court against retried Gen Musharraf had never been taken up by the federal cabinet ‘as an agenda item’. However, the cabinet took up the matter regarding appointment of judges of the special court following retirement or elevation of its members, he said.

The bench expressed wonder as the additional AG said the appointment of the special court’s judges had been made in consultation with the then chief justice of Pakistan.

The law officer explained that a ruling by the Supreme Court made consultation with the CJ mandatory for appointment of judges in tribunals and special courts.

He said a Federal Investigating Agency (FIA) team comprising around 25 members had completed an inquiry in the high treason case and filed the case before the trial court.

The bench questioned the validity of the inquiry observing that persons appearing before the FIA inquiry had not attended the trial proceedings. It also questioned the formation of the special trial court five years after the alleged offence.

Referring to the record, Mr Khan said the words of “suspension” and “holds in abeyance” had been inserted in Article 6 of the Constitution through 18th Amendment in 2010.

Justice Naqvi observed that proclamation of emergency was part of the Constitution under its Article 232.

To define “abrogation” of the Constitution, the judge referred to the comments of former military dictator Ziaul Haq wherein he said, “What is Constitution? This is just a book of 12 pages and I can tear it apart anytime.” Those remarks of Ziaul Haq were in fact the abrogation of the Constitution, the judge added.

Justice Naqvi noted that every government would face proceedings of high treason if invoking Article 232 was declared abrogation or subversion of the Constitution.

The judge also observed that the record of the case showed that all had been done on a “WhatsApp” call.

The law officer said it appeared that all had been done on “personal whim of someone”.

In response to a court’s query about enforcement of the amended Article 6, the additional AG was of the opinion that no one could be punished by giving retrospective effect to a law.

When Justice Jahangir asked the federal law officer as if his stance was the same as taken by the petitioner’s lawyers, Mr Khan claimed all he stated before the bench was not government opinion but facts from record of the case.

After hearing the law officer, the bench concluded the hearing and announced a short verdict later.

A legal panel comprising Khwaja Ahmad Tariq Rahim and Azhar Siddique represented Musharraf in the case. Supreme Court Bar Association’s president Barrister Syed Ali Zafar also assisted the bench as amicus curie (friend of court) and termed the actions against the former military ruler unconstitutional.

The special court comprising Peshawar High Court Chief Justice Waqar Ahmed Seth, Justice Nazar Akbar of the Sindh High Court and Justice Shahid Karim of the Lahore High Court had awarded death sentence to retired Gen Musharraf with a majority decision of two to one.

The verdict, however, generated a controversy since the trial court’s president Justice Seth giving his minority view in Para 66 of the decision 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.”

In his petition, retired Gen Musharraf specifically assailed Para-66 of the guilty verdict saying the president of the special court had crossed all religious moral, civil and constitutional limits, while ruthlessly, irreligiously, unlawfully, unrealistically awarding a sentence against the dignity of a person.

The former military ruler has not filed an appeal against the sentence before the Supreme Court so far.

Meanwhile, the registrar office put an objection on the competency of a petition filed through senior lawyer A.K. Dogar challenging the jurisdiction of the full bench to hear the petition of Musharraf. The office said the petitioner was not an aggrieved party in the case.

Later, the bench took up the petition as an “objection case” and told the counsel that detailed order would address that petition as well.

Published in Dawn, January 14th, 2020