Special court orders: Musharraf allowed access to FIA report

Prosecution cannot decide what material is sensitive, maintains bench.

ISLAMABAD:

A special court on Thursday accepted a plea that former president Pervez Musharraf be given access to a probe report and other relevant documents about his treason trial.

The three-member bench headed by Justice Faisal Arab has asked the Federal Investigation Agency (FIA) to hand over the relevant documents by May 14.

The bench also made it clear that it has ample power to try any abettor. The decision to implicate any other person would depend on what material comes on record in the shape of documents, extrajudicial statements and oral evidence and the evidence so produced might then connect any other person with the commission of the crime.

The court ordered the prosecution to file all the copies of statements of all the persons that were recorded during the course of the inquiry or the investigation, whether intended to be produced as prosecution witnesses or not, by May 14.

“The question that what material is sensitive and needs to be withheld from disclosure is not for the prosecution to determine but for the court to decide,” reads the court order, adding that selection of evidence collected during the investigation of a crime cannot be left at the sole discretion of the prosecution or kept out of the reach of the defense.

“The process of recording evidence of the prosecution witnesses shall commence on May 22, 2014 so that the defence counsel may have seven clear days as provided in section 265-C of Criminal Procedure (CrPC) to examine the documents and the statements in order to prepare his defence,” the court order stated.

“We have given due consideration to the arguments of both the sides,: it said, adding that Musharraf’s counsel argument that the accused had been singled out was rebutted by the prosecutor on the assertion that the complaint was filed on the basis of the documents.

A member of Musharraf’s legal team Faisal Chaudhry told the media that the court’s decision was seen as a triumph for the former president and his legal wizards.

The prosecution said that Musharraf’s legal team has filed over 20 applications on different subjects before the special court just to delay the process. They appealed to the court to fix a date for a formal recording of statements and evidence.

On April 24, the legal team of the former president had raised questions over the non-availability of the FIA’s inquiry report, accusing the prosecution of deliberately withholding documents related to the promulgation of the November 3, 2007 emergency and Provisional Constitutional Order (PCO).

Counsel for Musharraf, Farogh Nasim, had argued before the court that the prosecution’s witnesses could not be cross-examined until the report was received.

Nasim had 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.

He cautioned that if the relevant record was not shared, then it would be a violation of Article 25 of the Constitution.

Public prosecutor Akram Sheikh was of the view that Musharraf’s application seeking access to FIA records was filed at an inappropriate and premature stage as recording of evidence has not yet commenced and no witness has deposed as yet.

On March 31, Musharraf was formally charged for subverting and circumventing the constitution by imposing emergency on November 3, 2007. Musharraf has rejected the charges levelled against him.

Published in The Express Tribune, May 9^th, 2014.