Musharraf treason case: Govt posits special court’s judgment ‘illegal’

In written reply, argues that special court lacks jurisdiction to add names of co-accused.

ISLAMABAD: The federal government has pleaded that the special court’s November 21 order was ‘patently illegal’ as it lacked jurisdiction to include the names of the co-accused, especially after the prosecution had presented its evidence.

The federal government’s written reply to the Islamabad High Court states that the order was based on conjecture and there was no referral to any specific testimony or documentary evidence on the basis of which it has been passed.

“The special court, with utmost respect, has not based its finding on any evidentiary material. The impugned order is therefore based on subjective opinions and presumptions. It cannot pass the test of relevance and reason and is liable to be set aside,” the reply stated.

The court failed to present any clear directives on how to proceed on the basis of previous investigation report to implicate additional accused without further investigation, it stated. Even if additional investigation is undertaken, the nomination of three new co-accused, without any evidence, would be essentially biased and against natural justice, it further added.

The federal government is the sole authority designated by the parliament to initiate a trial under Article 6 of the Constitution, when read with Section 3 of the High Treason Act and the Criminal Law Amendment Act, the reply said.

“Parliament expressly mandated the federal government, by law, to be the sole initiator of complaints in high treason cases due to the nature of the offence,” it read.

Justice Athar Minallah, was hearing the writ petitions of former federal minister for science and technology Zahid Hamid — Musharraf’s law minister in 2007 — former chief justice of Pakistan Justice Abdul Hameed Dogar and former Prime Minister Shaukat Aziz.

All three had challenged the special court’s November 21 order where it had, by majority decision, directed the federal government to include more names as abettors in the case challenging Musharraf’s imposition of an ‘emergency’.

There was one more petition filed by former Rawalpindi High Court Bar Association president Taufiq Asif, who also challenged the order on another pretext, saying that Musharraf’s must be separated from the trial of other accused as a joint trial would delay adjudication.

On Wednesday, Asif requested the court to constitute a larger bench. Musharraf’s counsel, Chaudhry Faisal Hussain, said that there was no need for a larger bench as the special court held the status of a tribunal and the high court was superior to it.

Following the arguments, the IHC decided to hear the treason case regularly from May 19 to resolve the issue of maintainability and whether or not to constitute a larger bench.

Moreover, Justice Minallah said that the court has to examine whether these cases were maintainable or not, and if maintainable, does the special court have jurisdiction to nominate accused persons other than those nominated by the federal government.

The Supreme Court has given the IHC a month’s time to conclude the hearings of petitions against its earlier judgment which barred the special court from proceeding against former president Musharraf in the high treason case.

Published in The Express Tribune, May 14^th, 2015.