SC never fixed Musharraf’s anti-conviction plea

Ex-military ruler filed appeal even after LHC declared filing of treason case against him ‘unconstitutional'

Hasnaat Malik February 06, 2023


Despite the former military ruler's extreme desire, the Supreme Court did not fix Gen (retd) Pervez Musharraf's plea against his conviction in a high treason case for the last three years.

After his demise, the appeal is expected to become infructuous.

The SC did not fix Musharraf's plea in an open court challenging the registrar’s decision of not entertaining his appeal, in which he sought to overturn the Dec 17, 2019 death sentence awarded to him by the special court in a high treason case.

In 2020, the SC registrar’s office had returned Musharraf’s appeal on the grounds that unless the petitioner surrendered himself, his plea could not be entertained.

However, later his appeal was fixed in chamber before Chief Justice of Pakistan Umar Ata Bandial.

An application was filed against the SC registrar’s decision.

Advocate Salman Safdar, Musharraf’s counsel, appeared in the CJP's chamber to represent his client.

CJP Bandial decided to fix the appeal against the objections raised by the registrar's office before a larger bench.

Nonetheless, the SC registrar did not fix the appeal.

Neither ex-CJP Gulzar Ahmed, nor the incumbent one listed the case for hearing.

Interestingly, Musharraf filed the appeal in the SC even though a three-judge bench of the Lahore High Court had already declared “unconstitutional” the filing of a high treason case against him, the formation of the special court and its proceedings -- leading to the abolition of the death penalty handed down to him.

Subsequently, the Pakistan Bar Council (PBC) had challenged the LHC verdict

Its petition is yet to be fixed before a bench.

Musharraf's lawyer Salman Safdar told The Express Tribune that just before the former president’s condition became critical, he was actively pursuing the high treason case.

“He was very anxious to return to his homeland and pursue the cases registered against him,” he added.

The counsel said that because of multiple serious ailments, Musharraf was no longer in a position to give any instructions to him.

"My active communication with him ended almost a year ago and since then, his family members – Bilal Musharraf and Begum Sehba Musharraf – were following cases on his behalf,” he explained.

Salman said Musharraf wanted to remove the stigma of a conviction.

He also said Musharraf's appeal in SC was pending with an objection that he was not present in the country, which was a mandatory requirement.

"The plea against the objections was heard by a single judge in his chamber and the matter was ordered to be heard by an SC larger bench, which to date has not been constituted,” he added.

It has been learnt that senior lawyers had advised Musharraf’s supporters to challenge the special court order, which was issued in line of the SC judgment.

Musharraf was also declared as an absconder in former premier Benazir Bhutto's murder case.

Former CJP Asif Saeed Khosa is said to have played a key role in ensuring that the six-year-old treason trial against Musharraf was concluded before his retirement in December 2019.

The Musharraf treason case, which was initiated in November 2013 by the government of his old foe Nawaz Sharif, had hit frequent delays as special court judges either recused themselves, retired, or were elevated.

Ex-CJP Khosa had brought the case back to life.

It has been learnt that he was not happy with the “undue interference of the high courts” to halt the special court proceedings.

The Islamabad High Court, on a petition of the interior ministry, had stopped the special court from announcing its verdict on November 28, while directing the government to form a new prosecution team to pursue the case.

The LHC was also hearing Musharraf’s petitions against the special court.

On November 20, 2019, the ex-CJP had hinted that the verdict in the case would be announced soon.

While addressing a ceremony at the Supreme Court, Khosa had said the post-2009 judiciary had convicted one prime minster [Yousuf Raza Gilani], disqualified another [Nawaz Sharif], and was soon going to decide a high treason case against a former army chief [Musharraf].

On November 21, 2014, a three-judge special court, led by Justice Faisal Arab, had directed the government to include the names of Shaukat Aziz, Abdul Hameed Dogar, and Zahid Hamid – then PM, CJP and law minister, respectively, as co-accused in the Musharraf treason case.

The proceedings were suspended for a couple of years because of the order.

In February 2016, the Supreme Court, led by then CJP Khosa, had set aside the special court order by directing that the trial against Musharraf be concluded.

The court had ruled that only Musharraf should be tried over treason charges for subverting the Constitution in 2007.

In an 11-page order, authored by CJP Khosa, the apex court had observed that a fresh investigation into high treason by associating any person rested within the prerogative of the government and not the special court or the IHC.

It had also reproduced all the observations and declarations made by the SC and the Sindh High Court, holding Musharraf solely responsible for the November 3, 2007 actions.

The judgment read that the observations and declarations had already attained finality and they were in public domain.

In the meantime, Musharraf had left the country for medical treatment.

Soon after taking charge as the CJP, Justice Khosa had taken up the matter about the delay in Musharraf’s trial.

On March 25, 2019, he had referred to the punishment given to English dictator Oliver Cromwell -- the Lord Protector of the Commonwealth of England, Scotland, and Ireland -- whose skeleton had been hanged after his death, observing that an accused was deliberately not appearing before the trial court.

He also raised the question that was the court helpless or not.

In April 2019, a three-member apex court bench, led by ex-CJP Khosa himself, had directed the special court to proceed under the law by concluding the matter.

It had held that if the accused failed to turn up, he would lose his right to an audience.

Following the SC’s decision, the special court resumed the hearing.

After the retirement of Justice Tahira Safdar, a special court member, ex-CJP Khosa had nominated Peshawar High Court Chief Justice Waqar Ahmad Seth to preside over the special court.

He had ensured the issuance of notification of Justice Seth’s appointment within two days.

A senior official said when the notification about Justice Seth’s appointment was issued, the ‘powerful circles’ became upset and the government removed the acting law secretary.


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