ISLAMABAD: On Friday, retired General Pervez Musharraf must have heaved a sigh of relief.

The special court seized with trying him for high treason was won over by Musharraf’s defence team, which has been arguing for weeks that the dictator should also be joined by his abettors in the dock.

The bench on Friday ordered the federal government to include former prime minister Shaukat Aziz, former and existing federal minister Zahid Hamid and former chief justice Abdul Hameed Dogar, as co-accused in the treason case.

The judgment once again focused attention on the treason trial which had been sidelined by the dharnas, the operation in North Wazir­istan and civil-military relations.

Most observers agreed that the order would delay the trial, provide a respite to Musharraf and create further complications for the Nawaz Sharif government. The latter has not only angered the military with its decision to push ahead with Musharraf’s trial but will now have to deal with the tricky issue of trying Zahid Hamid, a cabinet minister.

Two weeks’ notice

But to add to the pressure on the government, the court wants a response within two weeks.

The court directed the federal government to “submit amended or additional statement as well as statement of formal charges…against the then prime minister, the then federal law minister i.e. who held office on November 3, 2007 and Justice Abdul Hameed Dogar as co-accused within a fortnight”.

One of the three judges – Justice Yawar Ali of Lahore High Court (LHC) — wrote a dissenting note while the other two — Justice Faisal Arab of Sindh High Court (SHC), president of the special court, and Justice Syeda Tahira Safdar of Balochistan High Court (BHC) — were in agreement on the order.

The order was given in response to an application filed by Musharraf’s lead counsel, Farogh Nasim.

The court blamed the joint investigation team (JIT) of the Federal Investigation Agency (FIA), which probed the treason charges against Gen Musharraf, for shifting “their responsibility of identifying the persons, who allegedly facilitated the accused in taking the November 3, 2007 action...”

Saying that the investigators had left their assignment half-finished, it added that the judges failed to understand “why investigators did not identify others… The investigators ought to have taken their suspicion against unidentified persons to its logical conclusion.”

It also added that “It would be against the public interest if a selective investigation is allowed to be made the basis of a criminal trial.”

The abettors

There is little doubt that the others the court had in mind were then prime minister Shaukat Aziz; then law minister Zahid Hamid; and then chief justice Abdul Hameed Dogar as they helped the general get rid of the judges and bring in new ones.

The order pointed out that “he (Shaukat Aziz) facilitated the change intended to be brought about under the PCO…”

About the law minister – who is now serving in Nawaz Sharif’s cabinet – the order said that “The law minister is supposed to be conscious of the legal consequences… but [he] and the then-prime minister instantly indulged themselves in the process of removal and appointment of judges in November 3, 2007.”

It added that “…all removal and appointment of the superior courts judges were undertaken by the then federal law minister. He used to initiate summary containing proposal to the prime minister who then with his advice forwarded it to the president. Once the summary was approved by the president only then the notifications were issued.”

With this focus on the PCO and the removal of the judges, the order could not leave out Justice Dogar, about whom the order stated that “He was very swiftly nominated and with a span of only few hours of imposition of 2007 emergency, was sworn in as Chief Justice of Pakistan… Keeping the sequence of events in mind, the only logical conclusion which could be drawn from this is that Justice Abdul Hameed Dogar would not have been made Chief Justice of Pakistan if he had not consented to become Chief Justice of Pakistan prior to issuance of the PCO.”

Those who were absolved

The court, however, did not accede to the entire argument made by the defence, which had asked for many ‘abettors’ to be examined such as the then military leadership, including Chief of Army Staff Ashfaq Parvez Kayani, the chairman joint chiefs of staff committee, and provincial governors.

For instance, Musharraf’s counsel, Nasim, argued that Gen Kayani was promoted to the rank of Chief of Army Staff (COAS) on November 22, 2007 but he did not lift the emergency and that hence he was a partner in the crime.

The court observed that the statement of Sindh Governor Dr Ishratul Ibad had made it clear that the governors had received a briefing from the accused but none of them advised the accused to impose emergency.

The order added that “… none of the officials mentioned in the referred recital had any constitutional role to play in the imposition of emergency in any manner except the then prime minister.”

Similarly, the judges specifically discussed retired Gen Ashfaq Parvez Kayani, only to absolve him.

According to the order, Gen Kayani may have taken over in November 2007, while the emergency was still imposed, but by then the power to revoke the emergency lay with the president.

However, the legal arguments aside, the order allowed many analysts on television to snidely comment that the special court had given the military leadership of that time a clean chit while making it clear that three civilians should be tried for the offence.

Those making such comments did not highlight that the order had also absolved the parliamentarians who endorsed the November 3, 2007 emergency. “As mere endorsement lacks this basic ingredient it cannot be treated as an act of abetment,” said the order.

Published in Dawn, November 22th , 2014