The top court has asked the Special Court to proceed with the high treason trial on the next date of hearing (May 2) if General Pervez Musharraf (retd) fails to appear. The apex court order authored by Justice Mansoor Ali Shah, said: "In case the accused fails to appear on the next date of hearing, being a proclaimed offender, the Special Court is empowered to proceed against the accused even in his absence under section 9 of the Act."
However, in case the former army chief surrenders and appears before the Court then he would be entitled to record his statement under section 342, CrPC, and lead any other defence under the law.
The court said: "Section 342 of CrPC enables the accused (ex-army chief) to explain any circumstances appearing against him in the evidence." However, in the context of this Act, if he voluntarily chooses not to appear or join the proceedings, he loses his right to such an explanation." Similarly, the accused being a proclaimed offender loses his right to audience and forfeits his right to put up a defence.
The order said that on 24.2.2016, in the Abdul Hameed Dogar vs Federal Government through Secretary Ministry of Interior and others case, the apex court had directed the Special Court to proceed with the trial of the accused with all convenient dispatch and without any unnecessary delay.
"Looking at the progress of the trial, we note with concern that complaint against the accused was filed on 12.12.2013 before the Special Court, the charge was framed on 31.3.2014 and the prosecution evidence was closed on 18.9.2014 and since then the matter has been dragging on due to absence of the accused. The report of the Registrar Special Court cuts a sorry picture of the long delay in the trial."
There cannot be a more grave an offence than high treason and more solemn a proceedings than the trial for high treason case before a Special Court.
High treason is a constitutional offence. Article 6 provides if a person abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance the Constitution by use of force or show of force or by any other unconstitutional means, is guilty of high treason.
It said that the Constitution is the fundamental law of the land which people of Pakistan through their representatives in the National Assembly have adopted, enacted and have given to themselves. Obedience to the Constitution under Article 5 of the Constitution is the inviolable obligation of every citizen wherever he may be. The significance, gravity and solemnity of the proceedings before the Special Court cannot be undermined 'by delaying the trial due to non-appearance of the accused.'
The parliamentary debate on the bill of this Act suggested that "the accused are charged with serious offences involving security and sovereignty of the State, therefore, it is in their interest that the cases, if they are proved innocent, if their innocence is proved should be decided as speedily and as quickly as possible."
The Section 9 of the Act prevents this and ensures that the trial must proceed without any adjournment. It said that the Section 9 envisages that once the trial has begun, the trial shall not be adjourned by reason of absence of any accused person due to illness; or if the absence of the accused or his counsel has been brought about by the accused person himself, or if the behaviour of the accused person prior to such absence has been, in the opinion of the Special Court, such as to impede the course of justice.
The Section 9 mandates that the Special Court shall proceed with the trial after taking necessary steps to appoint an advocate to defend any such accused person. Section 9 is, therefore, an extension of the procedure for trial provided under section 6 of the Act and supports the purpose of the special law.
Within the scope of this Act, if the accused voluntarily chooses not to exercise his right to appear and to be present at trial, it does not infringe the fairness of the trial nor does it violate the right to fair trial under Article 10A of the Constitution.
To stop further proceedings of the trial, in this situation, would amount to putting a premium on the fault of the absconder. Besides, the control over the proceedings of the trial cannot be allowed to vest in the accused.
The court noted that the accused is not merely absenting himself from attending the Special Court, he has also been declared a proclaimed offender on 12.7.2016. Being a fugitive from the law, the accused loses his right to audience [see Ikramullah vs State (2015 SCMR 1002); Dr Mobashir Hassan vs Federation of Pakistan (PLD 2010 se 265); Hayat Bakhsh vs The State (PLD 1981 se 265)] as a consequence the accused has lost the right to have an advocate appointed to defend him unless and until the accused surrenders before the court.
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