Trial in absentia against principles of natural justice, rules LHC

Published January 28, 2020
The bench also found the process for the establishment of the special court in consultation with the then chief justice of Pakistan and chief justices of five high courts alien to the Constitution. — AFP/File
The bench also found the process for the establishment of the special court in consultation with the then chief justice of Pakistan and chief justices of five high courts alien to the Constitution. — AFP/File

LAHORE: The Lahore High Court has ruled that the concept of trial in absentia is not only inconsistent with the doctrine of Islamic justice enunciated in the Holy Quran and Sunnah but also against the golden principles of natural justice.

A full bench of the high court made the observation in its detailed judgement released on Monday on a petition filed by former military ruler retired Gen Pervez Musharraf challenging his conviction by a special court for high treason.

The LHC bench had thro­ugh a short order on Jan 13 declared unconstitutional all actions taken by the previous government against Gen Musharraf, including filing of a complaint under the high treason charge, formation of the special court and its proceedings, leading to abolition of his death penalty handed down by the trial court.

Detailed judgement on Musharraf’s petition challenging his conviction in treason case issued

The detailed judgement authored by Justice Syed Mazahar Ali Akbar Naqvi at first addressed the question of territorial jurisdiction of the LHC to hear the petition and observed that the Provisional Constitution Order No.1/2007 issued by the petitioner [Gen Mushar­raf] in capacity of the chief of army staff, General Headquarters, Rawalpindi, fell within the territorial jurisdiction of the court.

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

Deciding the petition on its merits, the bench obser­ved that the interior secretary was competent to file a complaint against the accu­sed of “high treason” only on the recommendations of the federal government, whereas the federal government was to operate in the spirit of Article 90(1) of the Constitution which includes the prime minister and the cabinet. “However, the requisite requirement of the Constitution was totally ignored,” said the verdict.

The bench also found the process for the establishment of the special court in consultation with the then chief justice of Pakistan and chief justices of five high courts alien to the Constitution. “It is established without any doubt that the very constitution of the special court was squarely illegal/improper and without jurisdiction,” ruled the bench.

It further held that the provision contained in Section 9 of Criminal Law Amendment (Special Court) Act, 1976 was repugnant to the injunctions of Islam and in contravention of Article 8 of the Cons­titution which provided that any law inconsistent with or in disregard of fundamental rights was void.

The said section 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 ruled that the acts mentioned in the complaint were not part of Article 6 of the Constitution at the time of commission of alleged accusation rather were incorporated in Article 6 by virtue of 18th Amendment, hence it could not be made basis for initiation of proceedings under Article 6.

Published in Dawn, January 28th, 2020

Opinion

The price of chocolate

The price of chocolate

Little attention is paid to any long-term strategy which might prevent vulnerable children from working in homes where they are in danger.

Editorial

Cholistan project
Updated 18 Feb, 2025

Cholistan project

GPI goals align with Pakistan's broader economic aims but the manner in which the initiative was launched raises questions.
Right to know
18 Feb, 2025

Right to know

IT is an unfortunate paradox that while on paper Pakistan has some of the most impressive right to information laws,...
Dam dispute
18 Feb, 2025

Dam dispute

THE situation in Chilas needs attention and a fair-minded approach so that it can be resolved amicably. Diamer ...
Climate funding gap
Updated 17 Feb, 2025

Climate funding gap

Pakistan must boost its institutional capacity to develop bankable climate projects.
UN monitoring report
Updated 17 Feb, 2025

UN monitoring report

Pakistan must press Kabul diplomatically over its tolerance of TTP terrorism.
Tax policy reform
17 Feb, 2025

Tax policy reform

THE cabinet’s decision to create a Tax Policy Office at the finance ministry has raised hopes that tax policy is...