ISLAMABAD: The Supreme Court (SC) on Monday ruled that the Special Court hearing the high treason case against former President Pervez Musharraf should proceed in accordance with law by concluding the matter and if the accused failed to turn up on May 2, he will lose his right to audience.
A three-member bench of the apex court headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Mansoor Ali Shah and Justice Muneeb Akhtar heard the petition of the Lahore High Court Bar Association through its president for prosecuting General (retd) Pervez Musharraf under the High Treason Punishment Act, 1973.
The court held that the accused has lost his right of audience while deliberately avoiding his appearance before the trial court despite repeated direction; however, if he ensures his appearance before the court, he will be able to get his right of defence.
The court directed that the Special Court should conclude the instant high treason case after hearing the prosecution sans defence counsel.
“There is no need of even recording of statement under Section 342 of the Code of Criminal Procedure (CrPC) if the accused does not come to the court”, the Chief Justice announced in a short order after deliberating over the issue for half an hour in the chamber.
The court, however, ruled that if the accused ensures his appearance before the trial court on May 2, he will have the right of audience and to defend himself through his counsel.
Earlier, during the course of hearing, Chief Justice Asif Saeed Khan Khosa observed that both the government and the trial court came to a dead end (closed end) in connection of prosecuting former President Pervez Musharraf for imposing the emergency rule on 3rd of November 2007.
The court noted that the trial court in its order passed in July 2016 had held that unless and until the accused is not arrested or surrounded, it cannot proceed further in the instant matter.
“Passing such an order, the trial court had blocked its own way, coming to a dead end while the prosecution as well as the government did not challenge the order of the trial court, instead allowed the accused to go abroad,” Chief Justice Asif Saeed Khan Khosa remarked after counsel for the accused informed about the trial court order, passed in July 2016.
Salman Safdar, counsel for Pervez Musharraf, read out the order, passed by the Special Court, hearing the high treason case against his client on July 19, 2016 stating that the court while invoking Section of the Criminal Law Amendment (Special Court) Act 1976 had ruled that unless and until the accused is not arrested or surrendered, it cannot further proceed with the instant proceedings. After hearing the counsel, the chief justice questioned as to why the prosecution did not challenge the said order adding that the state which had filed a complaint with the special court should have also challenged the order of the special court.
“Since the trial court had passed many orders for repatriating the accused, the federal government did nothing in this regard and particularly, after 2016 order of the trial court, putting itself in a closed street”, the CJP said.
Earlier, Sajid Ilyas Bhatti, deputy attorney general, read out the order of March 28 of Special Court, summoning Pervez Musharraf on May 2.
The Chief Justice asked the counsel for Musharraf as to whether the accused will fulfill his commitment of ensuring his appearance before the court on the required date.
The CJP questioned if the accused did not turn up despite his assurance, then what would happen adding that something should be done if he did not appear before the court.
Salman Safdar contended that he cannot give his personal guarantee for the client keeping in view his health condition adding that he has to undergo chemotherapy right from 10am to 7pm.
The counsel submitted that his client wishes to come and record his statement adding that the presence of the accused is mandatory for recording his statement but the option of recording the statement through Skype is not possible.
The chief justice observed that the court is aware of the fact that the trial in absentia is unconstitutional but if an accused induces unconstitutionality and deliberately not complying with court orders, then the law takes its own course.
The chief justice said that as per Section 9 of the Criminal Law Amendment (Special Court) Act 1976, the trial court can proceed with the matter even in the absence of the accused and the court can appoint a lawyer as a defence counsel if the earlier counsel withdraws from the case The Chief Justice asked the petitioners to read out the Section 9 of the Criminal Law Amendment (Special Court) Act 1976. The chief justice said that the legislature itself gave an answer in this section.
Naseeruddin Nayyar, prosecutor, submitted before the court that under Section 9 of the Act, the trial court can proceed in the absence of the accused if he is trying to impede the course of justice.
He contended that in the instant case, a complaint was filed and then charge was framed in the presence of the accused, indicting him but he pleaded not guilty and wanted to contest the case but later on despite of the repeated orders of the court summoning him, he has not yet appeared before the court.
Taufeeq Asif, the petitioner, argued before the court that the special court had declared the accused as proclaimed offender hence he has lost his right of audience and the learned Islamabad High Court had also held that unless and until the accused did not appear before the court, he cannot claim his right of audience.
Sheikh Ahsenuddin, another petitioner also endorsed the enforcement of Section 9 of the Criminal Law Amendment (Special Court) Act 1976 adding that there is no need of recording the statement of the accused under section 342 of the CrCP if the accused does not appear before the court.
Hamid Khan, counsel for Lahore High Court Bar Association, pleaded the court to settle the matter keeping in view of the present situation adding that they are seeking continuation of the proceedings under Article 184(3) of the Constitution.
Meanwhile, the court ruled for keeping the matter pending and adjourned further hearing for an indefinite period.
