The Supreme Court on Wednesday upheld the death sentence of late former military ruler Pervez Musharraf, awarded to him by the Special Court in the high treason case.

“The impugned passed on January 13, 2020, by the Lahore High Court (LHC) […] is not sustainable and accordingly set aside,” Chief Justice of Pakistan (CJP) Qazi Faez Isa said while announcing the short verdict.

The order comes as a four-judge SC bench — headed by the CJP and comprising Justice Syed Mansoor Ali Shah, Justice Aminuddin Khan and Justice Athar Minallah — took up a set of appeals pertaining to the 2020 Lahore High Court (LHC) order declaring unconstitutional the death sentence awarded to Musharraf.

In December 2019, a special court in Islamabad found the ex-dictator guilty of high treason and handed him a death sentence under Article 6 of the Constitution. It marked the first time in Pakistan’s history that a military chief had been declared guilty and punished.

However, on January 13, 2020, the LHC had declared unconstitutional all actions taken by the government against Musharraf, including the filing of a complaint on charges of high treason and the formation of a special court as well as its proceedings. The verdict led to the abolition of the death penalty handed down to him.

The bench — headed by Justice Mazahar Ali Akbar Naqvi and also comprising Justice Mohammad Ameer Bhatti and Justice Mohammad Masood Jahangir —had also set aside Section 9 of the 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.

In November, the top court had fixed for hearing a set of appeals, including one filed by the late military dictator. Days later, it had also admitted for hearing appeals against the ex-president’s acquittal.

The counsels in this matter including Vice Chairman of Pakistan Bar Council Haroonur Rashid, senior counsel Hamid Khan, Rashid A. Rizvi and others had primarily challenged the LHC’s decision for having “no legal or territorial jurisdiction, corum non judice (not before a judge), the high court’s exercise of SC’s powers and the maintainability of Gen Musharraf’s petition filed before the LHC”.

While presiding over the case in November, CJP Isa had assailed the LHC for knowingly overlooking earlier decisions of the apex court through its 2020 judgment.

In a subsequent hearing, the top court had poked holes in the LHC decision, observing that it addressed issues beyond the scope of the initial petition. At another hearing, Justice Minallah had remarked that the judges who granted legal cover to Musharraf’s martial law should be tried in court.

During the proceedings today, which were broadcast live on the SC’s website, the bench dismissed the appeals, noting that “despite attempting to do so, Musharraf’s legal heirs could not be contacted”.

PBC ‘appreciates’ SC decision

In a statement issued later in the day, a copy of which is available with Dawn.com, the Pakistan Bar Council (PBC) “appreciated” the SC’s decision to uphold Musharraf’s death sentence.

The statement — issued by PBC Vice Chairman Haroon-ur-Rashid and Executive Committee Chairman Hassan Raza Pasha — said the apex court had proved that the judiciary was independent.

“The whole legal community has welcomed this historic judgment and also demanded from the federal government to initiate the case under Article 6 against delinquents and responsible, who violated Article 5 of the Constitution of Pakistan,” it read.

The PBC noted that the apex court “played its constitutional role for strengthening the democracy and rule of law in the country through its historic judgment which would strengthen the principle of supremacy of the constitution and would be remembered as an example in the political history of Pakistan”.

It further noted that the PBC and legal fraternity “had always resisted against unconstitutional steps of usurpers”.

“The Institution of Army is very dear to the people of Pakistan as a defender of the homeland and it should perform its duties and functions prescribed under the Constitution of Pakistan and should not violate its oath,” the statement said.

It added that the lawyers’ community was committed to protect the Constitution, the independence of the judiciary and the rule of law in the country.

The hearing

At the outset of the hearing, Hamid said that the appeal filed by Musharraf against his sentence was a “criminal appeal” while his request before the SC was to set aside the LHC order, which he said was a “constitutional matter”.

He urged the top court to hear both appeals separately. CJP Isa then noted, “In the current case, the Lahore High Court’s jurisdiction and appeal are separate matters.”

The chief justice then said the court wanted to hear Safdar’s arguments first.

Here, Additional Attorney General Aamir Rehman, the state counsel, opposed the appeal filed against the former president’s sentence. Upon the top judge confirming whether he was opposing Musharraf’s appeal or was in favour of it, the lawyer said he was against it.

Subsequently, Barrister Safdar was summoned to the rostrum. Before commencing his arguments, the lawyer said he was not representing anyone from Musharraf’s family. “They are in knowledge and are not interested in pursuing the appeal,” he said.

Safar said he tried to get in touch with the former military dictator’s family but they had not responded “even once”.

“Then what submissions will you make and for whom?” the CJP asked, to which the lawyer replied he could assist the court on two matters. “Scenario one, if there is a punishment resulting in a fine,” Barrister Safdar said.

Here, Justice Isa said the court was “more accommodating” towards the appellant due to ill health but at the same time noted that it was expected that the legal heirs would come before the court. “So then there is nothing before us to decide,” the top judge remarked.

Meanwhile, Justice Shah said that as per the law, when the appellant passed away the appeal stood abated. “That is the legal position,” he stated, noting that the legal heirs were repeatedly reached out be they never responded.

For his part, Barrister Safdar highlighted that case, particularly that of high treason, was taken up after a delay of three years. At that, the CJP said the SC was trying to restructure things and “I think, you are absolutely correct, the law heavily implies that this is not an everyday case and should be attended to as quickly as possible”.

The top judge also remarked that “at the end of the day everything revolves around fairness and I don’t see a good reason for a person who wants to vindicate the name of his deceased […] father, why he should he be prevented because it also affects that person”.

“Okay, it has family consequences, but here we have the added problem that none of the legal heirs has come forward […] let’s keep the issue alive because after all this is a code of criminal procedure,” CJP Isa said, adding that the court could look at certain constitutional provisions.

At one point, Justice Minallah inquired how the criminal procedure court was enacted in the appeal. In his response, Barrister Safdar said death had been explained in the law of abatement.

The lawyer added all the reported judgments noted the principle that “with death corporal punishment is exacted from the body” and without the body the appeal would be abated. “Continuance [of the appeal] is only possible if the family steps in through SC rule or a formal application,” he pointed out.

During the hearing, the CJP also asked Safdar to elaborate on his “grave reservations” to the LHC order. “I would not like to disclose, purely for personal reasons,” the lawyer replied.

However, Safdar said that if he was given the mandate to argue the appeal, his opening grounds would be that “this is a case where a constitutional crime has been investigated and prosecuted in an unconstitutional manner”.

Subsequently, the court adjourned the proceedings for 20 minutes. When the hearing resumed, the CJP said appreciated Safdar. The top judge then narrated the order. Referring to the appeal filed by Musharraf, the special court and state were named as correspondents.

“The appellant had not surrendered himself to the court and it was contended on his behalf that he was indisposed abroad and not in a position to appear,” he said, adding that the appellant passed away on Feb 5, 2023.

Justice Isa said the SC had issued notices to the legal heirs of the deceased appellant at all the available addresses, both within the country and abroad. Notices were also published in newspapers and on Nov 28 last year two questions were framed; whether on the death of the appellant, the appeal did not abate and if the conviction of the appellant was upheld.

“Salman Safdar stated that he sent out a number of messages reaching out to the legal heirs of the appellant but did not receive any response thereof,” he said.

“In the given circumstances, and as none of the legal heirs have come forward, we have no option but to hold that the instant appeal has abated, consequently the conviction of the special court subsists,” CJP Isa added.