Musharraf case: LHC issues detailed verdict

The Lahore High Court (LHC) on Monday issued a detailed verdict regarding declaring the formation of a special court to hear high treason case against former military ruler Pervez Musharraf as unconstitutional.

Through a short order on January 13, the bench comprising Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ameer Bhatti and Justice Chaudhry Masood Jahangir had set aside the all proceedings starting from filing of complaint, formation of a special court, trial in absentia and conclusion of the trial.

Musharraf had been sentenced to death by a special court on December 17, 2019, which was filed against him by the previous PML-N government after it assumed office in 2013.

The court in its 36-page detailed verdict held that non-obtaining of approval for filing the complaint and constitution of special court in terms of Section 4 of the Criminal Law Amendment (Special Court) Act, 1976 is violative of law, as well as, devoid of legal sanctity.

"The notification on December 29, 1994 though was issued by the competent authority but it remained unamended for its application regarding the substantive law contained in Section 3 of the High Treason (Punishment) Act, 1973 and Article 6 of the Constitution amended through the 18th amendment.

The court held that the amendment in Article 6 of the Constitution, 1973 introduced at a belated stage through 18th amendment cannot be given retrospective effect to constitute an offence purportedly committed much earlier, which is against the spirit of Article 12 of the Constitution.

"Section 9 of the Criminal Law Amendment (Special Court) Act, 1976 qua trial in absentia is declared as illegal, unconstitutional being repugnant to injunctions of Islam, as well as, Article 2-A, 8 and 10-A of the Constitution of Islamic Republic of Pakistan, 1973 the court added.

"The court discussing the point raised in the case observed that keeping in view the constitutional jurisdiction of this Court, the law under challenge, and the principles qua maintainability, enunciated by the Superior Courts of the country from time-to-time, coupled with the fact that the Provisional Constitution Order No.1/2007 was issued by the petitioner in the capacity of Chief of Army Staff, the same falls within the territorial jurisdiction of this Court. Hence, in view of Section 5 of Part-G of Chapter-1 of High Court Rules and Orders, this Court can entertain the instant petition even at principal seat, therefore, the same is maintainable in the given circumstances.

"As far as merits regarding initiation of proceedings before the 'special court' are concerned, a perusal of record reflects that the summary moved in this respect clearly reflects that proceeding under Article 6 of the Constitution was to be made operative in consonance with Article 90(1) of the Constitution. However, it was initiated on the direction of the then Prime Minister issued to the Secretary Interior.

"It is established that Secretary Interior was competent to file a complaint against the accused of 'High Treason' only on the recommendations of the Federal Government whereas the Federal Government was to operate in the spirit of Article 90(1) of the Constitution which includes the Prime Minister and the Cabinet. However, the requisite requirement of the Constitution was totally ignored.

"Recording the constitution of the special court the court observed that from the bare reading of Section 4(i) of the Act 1976, it is abundantly clear that the constitution of the 'special court' has to be accomplished by the Federal Government as envisaged in Article 90(1) of the Constitution. However, in the case in hand the same was constituted by means of notification issued on November 20, 2013, the Ministry of Law, Justice and Human Rights Division, which said the Federal Government in consultation with the Chief Justice of Pakistan, as well as the Chief Justices of five High Courts, is pleased to constitute a Special Court for trial of offence of High Treason under the High Treason (Punishment) Act, 1973 (Act No.LXVII of 1973).

"The notification straightway reflects that the 'Federal Government; in consultation with the Chief Justice of Pakistan, as well as, the Chief Justices of five High Courts, had constituted the 'special court' for the trial. When confronted, the Additional Attorney General had been candid to concede that for the accomplishment of above process, no document with regard to such an act by the 'Federal Government' in consonance of Article 90(1) of the Constitution is or could be made available on record.

"We had also asked the Additional Attorney General to apprise that where the connotation of 'consultation with the Chief Justice of Pakistan' was drawn from, for constitution of the 'special court' and again he responded that the same is alien to the provisions of the Act 1976, as well as, the Constitution of Islamic Republic of Pakistan, 1973.

"The foregoing provisions transpire that after filing of the 'complaint', it is the court itself to examine the complainant along with other witnesses, if any, at preliminary stage and thereafter it would be upto the court to either order for initiation of inquiry regarding the allegations or it may drop the inquiry proceedings. However, in the instant case the procedure was trampled/transgressed by the executive in a very skeptical manner.

"Another crucial point agitated before the court with great force is that provisions of Section 9 of the Act, 1976 'trial in absentia' are unconstitutional, which not only impinge upon the principles of natural justice but also transgress the injunctions of Islam. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process. The concept of trial in absentia is even inconsistent with the "doctrine of Islamic Justice" enunciated in the Holy Qur'an and Sunnah rather it is against the golden principles of natural justice. Hence, when examined from this perspective, it is crystal clear that the provision contained in Section 9 of the Act 1976 is repugnant to the injunctions of Islam and in contravention of Article 8 of the Constitution, which provides that any law inconsistent with or in disregard of fundamental rights is void.

"Next question hunting the court is whether the act purportedly committed by the petitioner can be characterized as an act attracting the provisions of Article 6 of the Constitution. While evaluating this aspect, it is noteworthy that emergency was proclaimed on November 03, 2007.

"Article 6 of the Constitution was amended by means of 18th amendment on April 20, 2010 i.e. subsequent to the act alleged against the petitioner, whereas there is no deeming clause embodied therein regarding its applicability retrospectively.

"It is abundantly clear from plain reading of the provisions of Article 12(1)(a)(b) that any criminal act shall not be given retrospective effect unless committed subsequent to such legislation.

"Hence, after any relevant amendment in the Constitution, corresponding amendment in the Act 1973 was essential for holding it in field, which was not done. Hence, this aspect alone is sufficient to discard the acts introduced through the 18 th amendment in Article 6 of the Constitution. Moreover, through 18th amendment in Article 6, in addition to words 'abrogation' and 'subversion', 'suspension' and 'holds in abeyance' were also made part thereof.

"It is not out of context to take into consideration the arguments advanced before us qua provisions of Article 232 of the Constitution. There is no denial to this fact that the said Article is brainchild of the Constitution which confers powers to the President for issuance of proclamation of emergency subject to conditions laid down therein.

"Another question which requires judicial scrutiny is that whether the Court can go beyond the prayer in the constitutional petition. It has become a matter of unanimous interpretation of law that the Superior Courts of the country are well within jurisdiction rather are under obligation to take notice of the changed circumstances/subsequent events to mould the relief sought for in the interest of safe dispensation of justice.

"We are of the considered view that it is established without an iota of doubt that very basis of initiation of proceedings against the petitioner/General (R) Pervez Musharraf, since its inception to the culmination are beyond the constitutional mandate, ultra vires, coram-non-judice, unlawful, hence, any superstructure raised over it shall fall to ground.

The instant constitutional petition stands allowed in the above terms," the court concluded.