SC hears Musharraf’s appeals against death penalty

CJ Isa wonders why case was not heard in four years; also issued notices on appeals against LHC ruling

ISLAMABAD:

The Supreme Court on Friday admitted an appeal of former military ruler late Gen Pervez Musharraf against the death sentence in a treason case, and the appeals against the decision of the Lahore High Court (LHC) which had declared the special court for trying the treason case as unconstitutional.

A four-member larger bench, led by Chief Justice Qazi Faiz Isa and including Justice Mansoor Ali Shah, Justice Aminuddin Khan and Justice Athar Minullah, heard the case. The court declared that a convict should not bear the consequences of any judicial inaction.

"It is unfortunate that despite the order of the learned judge in chamber, directing that the said criminal miscellaneous appeal be fixed in court, this was not done till today (Nov 10, 2023), that is, the same was not fixed for a period of over three years and eight months for no discernable reason.

“For this inordinate delay neither the appellant nor his counsel can be faulted. This court has repeatedly held that no one should be made to suffer on account of an act of court, or as in this matter, on account of inaction. Even otherwise an appeal is the right of every convict," says the order.

Earlier, the court set aside the objections raised by the Registrar's Office and directed the office to assign number to the appeal and fix them for the hearing. The court noted in its order that the delay in the hearing of the appeal was not caused by the appellant or his counsel.

The court observed that appeal against sentencing was a constitutional right of every convicted person. Noting that Musharraf had died, the order stated that the appellant's counsel, Salman Safdar, had stated that he was in touch with the deceased’s widow, son and daughter.

Read Parvez Musharraf: some personal recollections

The court also allowed hearing of appeals against the LHC decision. It stated that the appellants had no objection if the legal heirs of Musharraf wanted to become a party to the case. It added that the lawyers should assist the court regarding this matter.

The charges against Musharraf – who was sentenced in his absentia by the special court – stemmed from his imposition of the state of emergency in 2007, after which dozens of judges were placed under house arrest or sacked, sparking widespread street protests by lawyers.

In 2013, then prime minister Nawaz Sharif initiated the treason trial against Musharraf and in March 2014 he was charged with high treason. While announcing a majority verdict in 2019, the special court awarded death penalty to Musharraf in his absentia. Musharraf died in Dubai in February.

At the outset of the hearing, the chief justice explained that no special bench had been formed. He said that a three-judge bench was already formed, but Justice Shah was included as the fourth judge because he was part of the bench that had ordered for the trial of the high treason case and written its order.

Besides, Salman Safdar, lawyers Hamid Khan and petitioner Hafiz Abdul Rehman appeared from the Lahore Registry via a video link. Sindh High Court Bar Association’s (SHCBA) lawyer Rashid A Razvi appeared in the court via a video link from the Karachi Registry.

The chief justice asked why the case was not fixed for hearing, so far. Lawyer Salman Safdar replied that they had challenged the decision of the special court in the Supreme Court, but the Registrar Office raised objection that the accused had not surrendered, therefore, the appeal was not admissible.

He added that a chamber appeal was filed on February 14, 2020 against the Registrar Office’s objections and Justice Bandial heard it. In the in-chamber hearing, he said, Justice Bandial ordered on February 25, 2020 that the case should be heard in open court but the hearing was never fixed.

The chief justice said that despite the passage of such a long time, why the case had not been fixed for hearing. He stressed that the bench was not questioning anyone's conduct, but when there was a chamber order, the case should have been fixed within a month or two.

The lawyer told the court that the illness of Musharraf was obvious and that he was sentenced in absentia and an appeal was filed in his absence. He cited the case of late Benazir Bhutto, who was sentenced in absentia by an accountability court and her appeal was also filed in absentia.

To a court query, lawyers of all the petitioners did not object to the allotting number of Musharraf's appeal. The chief justice, then told Salman Safdar to take fresh instructions from Musharraf’s family, whether they wanted pursue the appeal.

While issuing notices before adjourning the hearing until November 21, the court ordered that time was being given to the lawyer to get fresh instructions from the heirs of Musharraf, adding that the counsel would personally deliver the notice to the heirs of the appellant.

“It is unfortunate that despite the order of the learned Judge in Chamber, directing that the said criminal miscellaneous appeal be fixed in Court this was not done till today (10 November 2023), that is, the same was not fixed for a period of over three years and eight months for no discernable reason,” it said.

“For this inordinate delay neither the appellant nor his counsel can be faulted. This Court has repeatedly held that no one should be made to suffer on account of an act of Court, or as in this matter, on account of inaction. Even otherwise an appeal is the right of every convict,” read the order.

The court order stated that the counsel referred to the Benazir Bhutto case, which fully applied to Musharraf’s appeal case because the nature of facts and law were the same. It also cited a Shariat Appellate Bench ruling that appeal against sentencing was a requirement of the Shariat.

Lawyer Salman Safdar informed the court that he would not assist the court on the appeals against the LHC ruling, rather he would restrict himself only to Musharraf's appeal against his conviction by the special court and the sentence awarded to him.

Read: Musharraf’s legacy

He said that Musharraf's case was handled in the LHC by Azhar Siddique and Khawaja Tariq Rahim. The chief justice told the lawyer that court would issue the notice and if any of the heirs of the deceased wanted to follow, they could do it.

Hamid Khan, the lawyer for the petitioner, LHC Rawalpindi Bar President Tawfiq Asif, argued that the LHC had declared the establishment of the special court as illegal despite the fact that the Supreme Court had ordered the special court on April 1, 2019 to complete the treason trial soon.

He added that the LHC did not take into account the orders of the Supreme Court. In response to a court query, Hamid Khan stated that the LHC decision was an illegal decision and that the LHC had no jurisdiction over the matter.

Petitioner Hafiz Abdul Rehman Ansari said that the LHC exercised the jurisdiction of the Supreme Court in that matter.

The court was also informed that the special court was established in Islamabad and the LHC did not have any jurisdiction over the Islamabad courts.

To a court query, the additional attorney general said that he would not comment on the LHC decision. Hamid Khan stated that it was for the first time that someone was tried for violating the Constitution and there was no precedent for the LHC decision. The court also issued notices on the appeals.