Treason trial: Prosecution concealing FIA report, cry Musharraf lawyers

Ask why the accused cannot get the report if it can be ‘leaked’ to a journalist.

ISLAMABAD:

The legal team of General (retd) Pervez Musharraf on Thursday raised questions over the non-availability of the Federal Investigation Agency’s inquiry report, accusing the prosecution of deliberately withholding the documents related to the promulgation of the  November 3, 2007 emergency and Provisional Constitutional Order (PCO).

During the hearing of the treason trial, the defence team asked why the joint investigation team’s report cannot be given to the accused if it can be ‘leaked’ to a journalist.

Counsel for Musharraf Barrister Farogh Naseem argued before the three-member special court, headed by Justice Faisal Arab, that the prosecution’s witnesses could not be cross-examined until the report was received.

Nasim also said that it was an essential pillar of the criminal justice process that the accused be allowed to set up his defence to the best of his abilities and this was only possible when the accused had access to all the information which the prosecution is relying upon in the case.

While relying on decisions of the superior courts of the UK, Canada, India and America, Naseem contended that a trial can be both vitiated and quashed on account of material unjustness such as non-production of an exculpatory piece of evidence, which in this case is the report of the FIA JIT constituted under the FIA Act, and which contains a dissenting note of one of its members.



“With reference to Articles 10-A, 9 and 14 of the Constitution of Pakistan, 1973 and section 265-C of the Criminal Procedure Code … it was the responsibility of the prosecution to supply the accused with all exculpatory and inculpatory material available with it,” he added.

He submitted that under the FIA Act and the National Accountability Bureau Ordinance, the investigating officers collect vast amount of information other than just the statements of the accused persons.

He also contended that it is not the duty of the prosecution to assure that the accused is convicted; on the contrary the prosecution is burdened with the onerous responsibility that all evidence is brought before the special court so that justice may be done.

The counsel submitted that the prosecution could not cross-examine the witnesses before presenting the FIA inquiry report to them as it is binding upon them to provide all relevant records of the case one week before the trial.

He further said that if the relevant record would not be given, then it would be the violation of Article 25 of the constitution.

Published in The Express Tribune, April 25^th, 2014.