ISLAMABAD: A four-member bench of the Supreme Court on Wednesday upheld the death sentence awarded by a special court to the late military dictator Pervez Musharraf in 2019 for high treason.

“In the given circumstances when no legal heir of the late Musharraf was before the court, we have no option but to hold that his appeal against the conviction will abate and consequently the conviction of the special court will subsist,” observed Chief Justice of Pakistan (CJP) Qazi Faez Isa in a judgement dictated in Courtroom No.1.

The bench had taken up a set of appeals against the Jan 13, 2020, Lahore High Court (LHC) order declaring unconstitutional the special court order of awarding death sentence to Gen Musharraf as well as his appeal against the Dec 17, 2019 death sentence awarded by the latter. In a split decision, the special court had handed a death sentence to the former military ruler, finding him guilty of high treason under Article 6 of the Constitution.

CJP Isa, heading a four-judge bench, also set aside the Jan 13, 2020, Lahore High Court (LHC) order as not sustainable. The detailed reasons will follow later.

CJP-led bench overturns LHC verdict; lawyers’ bodies, PPP hail judgement

In its decision, a three-judge LHC bench consisting of Jus­tice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ameer Bhatti, and Justice Chaudhry Muhammad Masood Jahangir had held that the trial of Gen Musharraf in absentia was illegal, unconstitutional, and repugnant to injunctions of Islam, as well as Articles 2A, 8 and 10-A of the Constitution.

During the hearing, the Supreme Court noted that the appeal was filed by Gen Musharraf but he had not surrendered himself to the court since the court was told on his behalf that he was indisposed abroad and therefore not in a position to appear before the court.

Senior counsel Salman Safdar, who earlier represented the convict, informed the court that on Feb 5, 2023, his client passed away and despite best efforts, he could not establish contact with the legal heirs. He said the legal heirs had lost their interest in the case due to an inordinate delay in the taking up of the appeal.

On Nov 10 last year, the court provided an opportunity to the counsel to again try to establish contact and even issue notices to the legal heirs of the deceased and also issued notices through leading newspapers in the country and abroad, but to no avail.

On Nov 28, the Supreme Court framed questions to consider whether after the death of the appellant, his appeal would not abate under Section 431 of the Criminal Procedure Code (CrPC) and if the sentence was upheld by the apex court, what consequences would it entail for his legal heirs, such as the rights, pensions and other pecuniary benefits. The counsel explained that he had sent out several messages to reach out to the legal heirs but did not receive any response.

Though not obliged, in the interest of justice the Supreme Court also issued notices at the addresses, but that too remained an exercise in futility.

Consequently, the counsel conceded that since no one had approached the court, let alone engaged the counsel, the appeal before the court would abate.

‘Decision appreciated’

Although there was no immediate public reaction from Gen Musharraf’s family, the legal fraternity and a handful of political parties issued statements endorsing the verdict.

Soon after the announcement of the judgement, Pakistan Bar Council Vice Chairman Haroonur Rashid and chairman of its executive committee, Hassan Raza Pasha, appreciated the decision.

In a statement, they said the deceased was guilty of high treason under Article 6 for subverting the Constitution twice, first on Oct 12, 1999, and then on Nov 3, 2007, when he imposed the emergency and held the Constitution in abeyance.

They demanded that the federal government initiate the case under Article 6 against delinquents and those responsible, who violated Article 5 of Constitution.

In a statement, the Pakistan Peoples Party also hailed the decision, with Farhatullah Babar saying the restoration of the special court verdict will be remembered as historic for its great symbolic value.

“Gen Musharraf is already dead and he cannot be hanged for treason...[but] the adventurer who hijacked the Consti­tution has been judicially pronounced as traitor and punished, even if symbolically, by that very Consti­tution which he had trampled with contempt.”

The verdict “will strike terror in the hearts of all would-be adventurers waiting in the wings”, he said.

Published in Dawn, January 11th, 2024