ISLAMABAD: Former military dictator General (retd) Pervez Musharraf may not be able to record his statement in the high treason case before the judicial commission to be set-up on the order of the Special Court issued on Monday, his counsel said.
On the other hand, the former head of prosecution team in the same case and senior Supreme Court lawyer Akram Sheikh has termed the order of the special court as unconstitutional and unprecedented in the history of administration of criminal justice in the Subcontinent.
The special court hearing Musharraf’s high treason case has ordered the formation of a commission to record the statement of Musharraf, who is currently residing in United Arab Emirates (UAE). The bench comprises Chief Justice of the Lahore High Court (LHC) Justice Yawar Ali, Chief Justice of Balochistan High Court Justice Tahira Safdar and Justice Nazar Akbar of the Sindh High Court.
Barrister Salman Safdar, the Counsel for Musharraf in the case also termed the setting up of the judicial commission unprecedented. He claimed his client is seriously ill and would not be able to give any statement before the judicial commission even in UAE. “My client is not in a stable physical condition to record statement inside or outside the country,” Barrister Safdar told The News.
He said the statement under Section 342 of CrPC is actually a dialogue between the judge and the accused where the judge confronts the accused with all incriminatory evidence presented before him. “This is a mandatory practice and no criminal trial could be completed without it,” Musharraf’s counsel said, adding a judicial commission can’t replace the judge hearing the case.
On the other hand, prosecution lawyer in the Musharraf’s high treason case, Dr Tariq Hasan also called it an unprecedented move. “It has never happened that such a commission is set up for an accused. Normally this facility is awarded only to witnesses,” he said. However he hailed the court move as a practical move to give every chance to the accused to record his statement.
But the former head of prosecution team in the case has expressed strong reservation on the decision. He said the Special Court “has written a new history by appointing a judicial commission to record the statement of a fugitive from law for recording his statement under Section 342 of CrPC in a foreign country of his current residence.
He termed the order “unconstitutional” and “unprecedented” and requested the chief justice of Pakistan to take notice of the decision. “The learned Special Court had already denied right of representation to accused, Gen (R) Pervez Musharraf, after he absconded and became fugitive from Law.
His lawyer Barrister Farogh Naseem, (now Federal Law Minister) stopped appearing for him after his abscondment and wakalat nama of Akhtar Shah was also not accepted by the Special Court.
Pervez Musharraf left the country on 17th March 2016 when his statement under Section 342 of CrPC was fixed to be recorded on 31st of March 2016 and was formally declared absconder in May 2016,” Akram Sheikh said.
He said the Special Court in allowing another learned Counsel to supplement Syed Akhtar Shah has acted in violation of Special Court's Order as well as the Criminal Law Amendment (Special Court) Act 1976 and has also opened floodgates of criticism against discriminatory treatment being meted out to Musharraf in stark violation of the Constitutional mandate of due process; guaranteed by Article 4, 10(A) and 25.
“It is most unfortunate that a case which under the law had to be concluded within three months of its institution on 13th of December 2013 still hangs on to the fancy of a retired General, who is a subverter and an abrogator of the 1973 Constitution and is now exposing vulnerability, fragility and incapacity of our criminal justice system to reach him out,” Sheikh said.
“I request the hon'ble Chief Justice of Pakistan to take notice of this Order of the Special Court dated 15-10-18 and to examine in the light of judgment dated 26.02.2016 of a bench headed by Senior Puisne Judge hon'ble Justice Asif Saeed Khan Khosa heading a three member bench as to the sustainability of the Order passed by the Special Court,” Akram sheikh said.
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