ISLAMABAD: Former president retired Gen Pervez Musharraf filed in the Supreme Court on Thursday an appeal seeking to overturn the special court’s Dec 17, 2019 verdict convicting him in the high treason case.

Moved by Barrister Salman Safdar, the petition pleaded that the verdict should be set aside since the trial was conducted and completed in sheer violation of the Constitution as well as the Code of Criminal Procedure (CrPC) 1898. It also sought the right of audience before the Supreme Court in his physical absence as well as the suspension of the judgement in the interest of justice and fair play.

When Dawn asked Barrister Safdar why he had filed the appeal in the apex court when the judgement was not in the field following the Lahore High Court’s Jan 13 short order declaring as unconstitutional the decision of the special court, he said the short order came on a different petition which did not concern the award of the sentence. Moreover, he said, the high court’s judgement was a short order the detailed reasons of which were still not available. Besides, the high court is a constitutional court, but the Supreme Court is an appellate court and, therefore, the appeal lies before the apex court.

The petition argued that the appeal was being filed only to avoid any miscarriage of justice within the limitation period which otherwise was expiring on Thursday.

Former military ruler seeks right to be heard by the apex court

In a nutshell, the petition pleaded that the case of the appellant was that he was being tried for a constitutional crime in an entirely unconstitutional manner.

It stated that Mr Musharraf was a highly decorated former four-star general of the Pakistan Army and had a remarkably distinguished career as a servant of this country. He had served as an officer of the army for nearly 43 years and through honesty and hard work reached the highest echelons of service and served as the 13th chief of the army staff from October 1998 to November 2007. He was also the 10th chairman of the Joint Chiefs of Staff Committee from 1998 to 2001. He also served as the 10th president of Pakistan from 2001 to 2008, the petition said.

During his tenure as the president and chief executive, Mr Musharraf was instrumental and played a leading role in restoration of the country’s economy after its near collapse in the late 1990s, the petition said, adding that his policies salvaged a near bankrupt economy and transformed it into one of the four fastest growing economies in the Asian region.

The average income of people more than doubled and the size of the economy also doubled during his tenure, it said, adding that even on the foreign policy front, Mr Musharraf guided Pakistan through its toughest foreign policy crisis with his astute and exemplary leadership after Sept 11 attacks in the United States. In the aftermath of the attacks, Pakistan allied with the US and other powers in the global war on terror. Thus the country rose to prominence on the world map and that he built the foundations of a lasting peace process with India and took several initiatives for the resolution of the disputed territory of Kashmir.

The petition contended that Mr Musharraf wished to draw the attention that his absence was not deliberate as he had multiple ailments which were life threatening, rendering him incapable of appearing before the Supreme Court. “The appellant did not escape from custody and his is not a case of ‘jail break’,” the petition said, adding that the special court, while fully recognising and acknowledging his ailments in 2013 and 2014, exempted him from personal appearance so much so that all eight prosecution witnesses were examined in his absence.

“On no occasion did the appellant or his legal team delay the matter,” the petition contended, adding that till such time when the appellant was present in the country, his legal team expeditiously followed up the case and examined all prosecution witnesses. But after Mr Musharraf left the country, he or his legal team could not proceed with the case and while abroad, he fell seriously ill and he was totally unfit to travel and return to Pakistan and stand trial, the petition argued.

“Thus the observation in the Dec 17 judgement about delay is aimed at shifting the blame from the special court to the legal team only to weakly justify trial in absentia,” it said.

The petition argued that interim orders of the special court reflected that it was satisfied that the appellant was genuinely ill and unwell. The decision to place appellant’s name on the Exit Control List was challenged before the Sindh High Court and subsequently, the Supreme Court, it said, adding that Mr Musharraf left the country with permission and approval, and later on his health condition worsened with the passage of time as is natural at the advanced age of 77.

The action of labelling and branding the appellant as a proclaimed offender under the circumstances is highly questionable, the petition said, adding that at best the case of Mr Musharraf was of prolonged illness. On many occasions, the special court accepted the application on medical grounds, it recalled.

“In support of the medical condition, irrefutable hospital records and medical certificates along with photographic and video evidence are also on the file, confirming the very grave illness of the appellant,” it argued.

The petition pleaded that Mr Musharraf was not a coward and had bravely faced several baseless and false cases, all of which were politically motivated. “The appellant is eager and most anxious now to recover from ailments which rendered him incapable of being physically present before the special court and now the Supreme Court, to seek justice for a conviction of a crime which the appellant had never committed. The appellant seeks special permission that since the special court proceeded in his absence and had also convicted the appellant in his absence, the case of the appellant qualifies to be heard at appeal in his absence,” the petition said.

Furthermore, it added, Mr Musharraf placed reliance on the landmark and authoritative judgement handed down by the Supreme Court in the 1999 Benazir Bhutto case in which it was held that the appeal filed in her absence against the sentence could be entertained and heard.

The petition pleaded that Mr Musharraf was confined to bed and it was extremely disturbing that the award of conviction for high treason had brought bad name and shame to the entire nation. “It is only in the interest of justice that the serious procedural bypasses committed by the special court be examined and scrutinised by the Supreme Court as quite clearly Musharraf has been denied the right to a fair trial, squarely against Article 10-A of the Constitution,” the petition said.

Published in Dawn, January 17th, 2020