Musharraf can’t set terms for appearance, court told

November 3 emergency rule:  Prosecutor Akram Sheikh says being an absconder, the accused can’t make any request until he first surrenders to court

ISLAMABAD: The prosecution on Wednesday told the Special Bench hearing high treason case against former military dictator General (R) Pervez Musharraf for imposing emergency rule in the country on November 3, 2007 that the accused could not set conditions for his appearance before it after being declared an absconder.

Prosecutor Muhammad Akram Sheikh filed a reply with the three-member bench that had directed him to file a reply on behalf of the federal government. The bench is head by Justice Yahya Afridi.

On the last hearing, Akhtar Shah, counsel for Pervez Musharraf, had told the court that the government must ensure adequate security for Musharraf before his return. In his reply, the prosecutor said having been declared an “absconder” and having perpetual warrant for arrest against him vide July 19, 2016 orders of the court Musharraf was legally barred from making any applications or submission to the court until he first surrendered to the court.

“An absconding accused is not entitled as of right to be heard even through the counsel,” the prosecution submitted adding that the application had been filed incompetently, as the source of the learned counsel’s authority to represent the absconder, i.e. the vakalatnama was suspicious.

The attestation by the Consulate General of Pakistan, Dubai is dated 9th August 2016, whereas the body of the vakalatnama has an overwritten date as 30th April 2017, which on the face of it shows that it was not an authentic document. 

The title of the case is listed as “State v General R Pervez Musharraf” which is incorrect and it seems that the learned counsel was passing off authority given to him in other criminal cases pending against the absconder in this Special Court. That this blatant abuse of process of law deserves stringent punitive action.

The prosecution further contended that the vakalatnama was not valid, as it did not meet the mandate of Article 95 of Qanoon-e-Shahadat Order 1984. 

An absconder cannot dictate his prerequisites to the court and give conditions, that too to his own subjective satisfaction, as to when he will appear and for how long,” Akram Sheikh submitted and recalled that vide orders dated 19th July 2016 the accused had been declared a proclaimed offender/absconder and perpetual warrant for arrest had been issued against him and proceedings as required under Section 88 CrPC regarding properties of absconder had been initiated.

He further submitted that only a legal challenge to that order by way of filing revision was possible and no other application could be filed by the absconder and under the garb of instant application proceedings commenced under Sections 87, 88 CrPC could not be recalled.

The prosecution contended that the application had been filed only to prolong the conclusion of the trial. 

Similar applications requesting “foolproof security” and citing medical and security reasons have previously be made in the other cases pending against the absconding accused but no other court allowed these requests”, the prosecution recalled.

Akram Sheikh submitted that this Special Court does not have any powers to dispense with the personal attendance of an absconder as prayed for. “The absconding accused cannot dictate the course of law, especially when this Court follows a certain procedure as mandated by the Criminal Law Amendment (Special Court) Act 1976”, the Prosecution said.

 The prosecution while giving parawise reply contended:

1.    Denied as stated. Without prejudice to the above-mentioned legal objection, the federal government guarantees the security of all its citizens and has been and is willing to provide all due security to General (r) Pervez Musharraf as per his entitlement, without making the said security measures a precondition to his appearance. However, the measure of effectiveness of the security cannot be left to the whims of the absconding accused as in that case the security measures will never be found adequate. The conduct of the absconder manifestly shows that he has no desire for appearance in court as he neither took permission from this honorable court to proceed abroad nor did he submit to any of the processes of this Court for compelling his appearance.

2. Denied. The absconding accused has appeared before this honorable special court previously under strict security and protocol and the federal government is equipped to ensure security for him.

3.    Denied. There is no evidence of any hospitalization of the absconding accused and the “narrative report” dated 7th October 2016 annexed with instant application contains no advisory as to his travel. In fact, the absconding accused is living in Dubai, UAE and this “narrative report” and medical examination has been conducted by a doctor in America, U.S.A, evidencing that the Absconding accused is regularly travelling between different countries and it is only Pakistan which is the exception. There is neither any independently verified evidence of the ailments and travel restrictions nor has any material been placed on record.

4.    Needs no reply to the extent of statement of facts. However, security conditions in courts have improved and since those tragic incidents courts in particular have taken precautionary security measures.

That in light of the above this Special Court should dismiss the instant application and take all appropriate coercive measures to procure the attendance of the absconding accused and to complete the trial as directed by the honorable Supreme Court in Paragraph 15 of order dated 26.2.2016 in Civil Appeal no 118/2016 with “all convenient dispatch”.

That if this honorable Special Court deems it appropriate for completion of trial then it may be pleased to pronounce judgment taking into consideration the absconding accused’s application number Cr.M.26/2014 in the interest of justice.