SC orders govt to decide itself on Musharraf going abroad

Upholds SHC verdict of removing former military ruler’s name from ECL; AG says govt following apex court’s interim order that places Musharraf’s name on ECL;  Musharraf lawyer Farogh Nasim says SC order of April 8, 2013 was not intact; what is the legal position of interim order, asks Justice Saqib Nisar; AG replied the said order be included as final order; CJ observes the govt does not want to take decision itself and is relying on an interim order of court; asks AG why you don’t take an independent decision by regulating the movement of accused; Faisal says Musharraf free to travel within the country and abroad

ISLAMABAD: The Supreme Court on Wednesday dropped in the government’s lap the issue of removing the name of former military ruler Pervez Musharraf from the Exit Control List (ECL) with the observation that the government should make an independent decision, either to allow him to go abroad for medical treatment or not.

A five-member larger bench of the apex court, headed by Chief Justice Anwar Zaheer Jamali, dismissed the Federation’s appeal, challenging the verdict of the Sindh High Court (PHC) that ordered the removal of Musharraf’s name from the ECL.

However, the apex court asked the government as well as the special court hearing the treason case against Musharraf to regulate his custody and restrain his movement.Chief Justice Anwar Zaheer Jamali, during the hearing, questioned that instead of relying on an interim order of the apex court why the Federation does not itself take an independent decision on the issue.

“We have heard the learned attorney general for the Federation and Barrister Farogh Nasim, counsel for the respondent Pervez Musharraf. The Federation’s appeal is dismissed, however, this order will not preclude the Federation and special court, seized with the matter and hearing it under Article 6 of the Constitution against Pervez Musharraf, from passing any appropriate legal order to regulate his custody and restrict his movement,” the court announced in its short order.

The court further ruled that the application moved by Musharraf, seeking permission to go abroad for medical treatment, has become infructuous.It is pertinent to mention that the SHC on June 12, 2014 had ordered the removal of Musharraf’s name from the ECL, but allowed the federal government two weeks’ time to file an appeal against its decision. Meanwhile, the Federation had moved the Supreme Court, challenging the order of the SHC upon which the apex court on June 23, 2014 after accepting the Federation’s appeal had suspended the SHC order. Similarly, the apex court in different petitions filed for putting the name of Musharraf on the ECL in its April 8, 2013 orderand all the functionaries “to ensure that Pervez Musharraf does not leave the jurisdiction of Pakistan till the final decision.” 

On the outset of hearing, Farogh Nasim submitted that the apex court while giving its final order on July 03, 2013 had disposed of the instant matter in the above order of April 8, 2013, meaning that earlier order of April 8, 2013 was not intact.

“When the April 8, 2013 once it emerged with the July 03, 2013 order, it sunk,” Faorgh Nasim contended, adding that the trial court in its order passed on March 31, 2014 did not create any restrictions on the movement of his client with the ruling that unless the accused is in custody he cannot be restrained from moving whenever he needs medical treatment.

Attorney General for Pakistan Salman Aslam Butt contended that the Federation is hampered by the apex court April 8, 2013 interim order. "Our stand is that interim order which placed his (Musharraf) name still holds the field”, the AG submitted 

Justice Mian Saqib Nisar observed that at present the matter before the court is rule of survival. He asked the attorney general as to what is the actual authority putting the name of a person on ECL, adding that what is the legal position of an interim order of the apex court.

The attorney general replied the said order be included as a final order and the Federation had complied that order of the apex court under Section 2 (F) of Exit from Pakistan (Control) Ordinance 1981. The chief justice observed that the government itself does not want to take decision and relying on the interim order of the court.

“Why don’t you take an independent decision by regulating the movement of the accused,” the chief justice asked the attorney general. He said that if the Federation thinks that the respondent (Musharraf) should not leave the country then it should decide the matter independently. The chief justice further said that the apex court had not restrained the Federation from taking its own and independent decision regarding putting Musharraf name on ECL.

Meanwhile, soon after the court verdict, Faisal Chaudhry, who assisted Farogh Nasim told The News that in the light of the SHC judgment and dismissal of Federation’s appeal, Musharraf is free to travel within the country and abroad. He said that in its verdict, the SHC had held that pending of trial against Musharraf in the high treason case cannot be the reason to deny his fundamental rights.

It is pertinent to mention here that recently, the special court hearing the treason case had summoned Musharraf on March 31 for recording his statement under Section 342 of Criminal Procedure Code (CrPC). On February 25, 2016 Musharraf had moved the Supreme Court seeking one-time permission to go abroad for medical treatment and had promised that he would return to the country after undergoing the required surgery. The chief justice later on heard the appeal of Musharraf and then fixed it before a larger bench with the pending appeal of the Federation against the judgment of the SHC that had ordered to remove the name of Musharraf from the ECL.