Musharraf’s case: Review petition filed against LHC’s decision to ‘dismiss’ Special Court

A review petition has been filed in the Lahore High Court. The petitioner argues that an appeal could have been filed before the Supreme Court against the Special Court’s verdict. The LHC cannot hear the case, he added.

Musharraf

Lawyers Foundation for Justice through its counsel AK Dogar has pleaded the Lahore High Court to review its decision of striking down complaint, trial and special court that tried and awarded death penalty to former military ruler retired Gen Pervez Musharraf for high treason.

“Where there is a statutory right of appeal available in the Supreme Court of Pakistan, a constitutional petition does not lie in the high court,” pleads the review application.

we direct the law enforcement agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk

The application has been filed under section 114 read with Order 47 Rule 1 of Civil Procedure Code and PLD 1970 SC 1 for review of the order passed by a full bench of the LHC on Jan 13 on a writ petition by Musharraf. The full bench is yet to issue its detailed order.

It argues that the writ petition of Musharraf was allowed by the bench without hearing the applicant as required under the law. It further argues that the decision passed by the full bench is violative of the principles of natural justice.

“Article 12(2) of the Constitution clarifies that the constitutional position by providing that the principle of protection against retrospectively does not apply to any act or action which is relatable to abrogation and subversion of the Constitution,” pleads the review against an argument by Musharraf about retrospective enforcement of the law in his case. It asks the court to review its earlier order on a basic premise that when there is a statutory right of appeal available in the SC a constitutional petition cannot be filed before a high court.

Read more: Pervez Musharraf’s appeal against Special Court’s verdict: Will he walk free?

The review plea states that section 12(3) of Criminal Law Amendment (Special Court) Act 1976 clearly provides that any party aggrieved by final judgment of the special court may prefer an appeal to the Supreme Court within 30 days of the passing of the judgment.

It relies on a SC judgment titled “Muhammad Raza Hayat Hiraj verses Election Commission-2015”, which ruled that interlocutory orders passed by the election tribunal impugned before the high court were not liable to be set aside in its constitutional jurisdiction as the petitioners before the court had a remedy available to them by the way of appeal under section 67 of the Act after disposal of the election petitions.

The foundation had also filed a civil miscellaneous application before the full bench challenging its jurisdiction to hear the petition of Musharraf. In its review, it says the full bench had observed that the application will be considered but soon thereafter it was announced that the order would be announced later in the day.

Special Court’s verdict

A special court bench comprising Justice Waqar Ahmad Seth of the Peshawar High Court, Justice Nazar Akbar of the Sindh High Court and Justice Shahid Karim of the Lahore High Court had on Tuesday convicted Musharraf for high treason and handed him the death penalty.

Judge Waqar Seth wrote in the judgement, “we direct the law enforcement agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan and be hanged for 03 days”. The government claimed to file a reference against the same judge who is not mentally fit. Later on, the government changed its mind.

Read more: Pervez Musharraf cries of ‘Personal Vendetta’ at work in his case

Prime Minister Imran Khan said that the special court’s detailed verdict in the former military ruler’s high treason case is an attempt to create “anarchy” and “unrest” in the country, as the federal government decided to move the Supreme Judicial Council (SJC) against the judge who authored the decision.

“I was not given right to self-defence”

Former president General (retd) Pervez Musharraf termed the special court’s verdict dubious, saying that no precedent can be found for such a decision where neither the accused nor his lawyer were given the fundamental right to defend the case.

In a statement issued by Pervez Musharraf, he expressed: “I heard the special court’s decision on TV, and it was an indefinite verdict which deliberately targeted only one person in the proceedings”.

He said that he greatly respects the Pakistani judiciary, but this is the first time in history that a special court has given such a verdict. “I even offered to record a statement before the special commission, but my statement was ignored and not recorded”, he added.

Pervez Musharraf said that he was targeted by officials who hold high positions. He went on to say that the case was heard because of some personal outrage while those judges who benefitted in his tenure are misusing their position against him. “The choice of events according to their intentions shows what these people want,” he asserted, adding that he is grateful to the army and the public for remembering his services.

“Due process was not followed”

The Pakistan Army said that the “due legal process” was not followed in the high treason case against its former chief Pervez Musharraf.  In a statement, the military’s media wing said that the army received the decision of the special court handing Musharraf a death sentence under Article 6 of the Constitution “with lot of pain and anguish”. “An ex-Army Chief, Chairman Joint Chief of Staff Committee and President of Pakistan, who has served the country for over 40 years, fought wars for the defense of the country can surely never be a traitor,” the ISPR statement said.

Case against Musharraf

It is worth mentioning that the high treason case was filed against the former president by the PML-N government in 2013 for clamping the state of emergency on November 3, 2007. Musharraf was booked in the high treason case in December 2013.

A special court — that was formed to hear the case against the former military dictator — indicted Gen Musharraf for high treason in March 2014. The prosecution laid its evidence by September same year. Musharraf was repeatedly asked by former CJP Saqib Nisar to come to Pakistan and defend his actions. Musharraf demanded an assurance that he will not be arrested, the CJP accepted the request, and said “let Musharraf return to Pakistan, no one will arrest him,” on October 11, 2018.

Read more: Was Pervez Musharraf given the right of self-defense?

Then-Chief Justice of Pakistan Asif Saeed Khosa on March 7, 2019 said that the statement of former president Pervez Musharraf — who is facing a treason case — can be recorded through a video link under Section 342 of the Code of Criminal Procedure if the retired army chief refuses to return to Pakistan. Musharraf did not agree.

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