High treason case against Musharraf: Special Court conviction still intact despite LHC verdict, says SC

ISLAMABAD: The caretaker government Tuesday disagreed with the Lahore High Court judgment quashing the Special Court verdict in the high-treason case against former military dictator Pervez Musharraf, declaring the formation of Special Court as unconstitutional.

A four-member larger bench of the apex court — headed by Chief Justice of Pakistan Qazi Faez Isa — heard the appeal of former military dictator which had not been fixed for hearing since 2019. Justice Syed Mansoor Ali Shah, Justice Amin-ud-Din Khan and Justice Athar Minallah were the bench members.

The chief justice asked the Additional Attorney General Chaudhry Aamir Rehman if the federal government supported the LHC verdict to which he said the federal government did not support it.

“Whether you support the appeals filed against the judgment of Lahore High Court,” the chief justice further asked the law officer to which he replied that they would accept the apex court judgment when given in the instant appeals.

Justice Syed Mansoor Ali Shah asked the additional attorney general whether he defended the LHC verdict. “We even don’t defend the judgment of Lahore High Court,” the law officer replied.

Dictating the order, the court noted down that the federal government did not support the LHC judgment in those appeals.

“We are in a very tricky situation. We don’t want to examine the merits of the instant appeals but want to look into the jurisdictional matter,” the chief justice remarked.

The court granted one week to Salman Safdar, counsel for Pervez Musharraf, to seek instructions from the legal heirs of former president, including his son Bilal Musharraf, wife Sehba Musharraf and daughter Ailya Musharraf.

The counsel submitted that he could not contact the family and sought one week for seeking instructions for further pursuing the instant appeal.

Dictating its order on the matter, the court noted down that according to the counsel, Bilal Musharraf lived in Dubai with his mother while his sister lived in Karachi.

The court asked the counsel to provide the contact numbers of all the legal heirs of Musharraf. The counsel committed to provide the numbers so that the court may contact the family members either through text messages or Whatsapp.

The court reminded the counsel that a note had been issued earlier to the former president at his Chak Shahzad residence which was received by an employee of the family but he said all the family members were residing in Dubai.

Salman Safdar told the court that the family members wanted to pursue the case but his appeal was not fixed when he was alive.

“I have not yet contacted the legal heirs and got no instructions whether I should pursue the case or not,” the counsel submitted.

“We are considering you a representative of Pervez Musharraf but if you are no more interested, then we will dispose it of,” the chief justice told the counsel.

Justice Isa further told the counsel that he could seek the family’s instructions whether they were satisfied with the Special Court verdict or further pursue the appeal.

“Earlier, the petitioner hired your services as his counsel, and if you personally pursue the appeal, then we have no objection,” the chief justice told Salman Safdar.

The counsel, however, contended that he should be given more time to seek instructions from the family members.

Justice Athar Minallah told the counsel that this case will impact the future generation adding that pension and other privileges could also be affected.

Hamid Khan submitted that the proceedings had been entertained by the Lahore High Court in derogation of two orders passed by the Supreme Court including February 26, 2016 SC-454 and April 1, 2019 SCMR 1029 reported.

He also gave the court a little bit background and facts of the high treason case and formation of the Special Court on November 20, 2013 through a notification.

To a question, Hamid Khan submitted that the Special Court on November 21, 2014 passed an order with the ruling that the former president should not be alone held responsible and held that Zahid Hamid, former prime minister Shaukat Aziz and Abdul Hameed Dogar should also be made parties to the case.

He submitted that the Supreme Court had set aside the order of the Special Court.

The chief justice asked Hamid Khan whether the Supreme Court judgments were binding on the high courts and whether the high courts could undo the judgments of Supreme Court.

“Can a high court invalidate the judgment of Supreme Court”, the CJP asked Hamid Khan. He further asked how the high court wrote against the Supreme Court judgment in this case.

“Is there any precedent in such like situation,” the CJP asked to which Hamid Khan replied that this was unusual.

The chief justice further said one of the judges of the high court wrote that the Supreme Court had not interpreted the Constitution correctly.

Justice Minallah observed that the high court relied on Mustafa Impex case.

“But I think the LHC had wrongly relied on Mustafa Impex case, as the Supreme Court had made it clear that the Mustafa Impex case could not be applied retrospectively,” Justice Minallah said.

He observed that the proceedings conducted by Lahore High Court after the verdict of the Special Court in high treason case got infructuous.

“Even after the verdict of the Lahore High Court, the decision of the Special Court convicting Pervez Musharraf in the high-treason case is intact,” Justice Athar Minallah remarked.

Hamid Khan told the court that he will be representing the petitioner, Taufeeq Asif, who had appealed the LHC judgment, while Rashid A Rizvi through video link from the Karachi Registry told the court that he will be representing the petitioner Sindh High Court Bar Association. Raza Pasha told the court that he will be representing the Pakistan Bar Council (PBC).

Akhtar Shah told the court that he wanted to become a party to the instant case Later, the court adjourned the hearing until today (Wednesday) at 11:30am.