High treason case: Musharraf must hang, says court

ISLAMABAD: The Special Court Tuesday awarded death sentence to former president General (R) Pervez Musharraf in the high treason case under Article 6 of the Constitution.

This is the first time in the country’s history that a military chief has been declared guilty of high treason and handed death sentence.

A three-member bench, comprising Chief Justice of Peshawar High Court (PHC) Waqar Seth, Justice Nazar Akbar of Sindh High Court (SHC) and Justice Shahid Karim of Lahore High Court (LHC), decided the case with 2-1 split verdict.

The court will issue a detailed judgment later on.

Musharraf is currently in Dubai admitted to a hospital.

The high treason case had been pending against Musharraf since Dec 2013 for imposing emergency on 3rd November 2007. He was indicted on March 31, 2014.

Musharraf consented to record his statement under Section 342. The verdict announced on Tuesday was the one the Special Court had reserved on November 19.

The verdict was to be announced on Nov 28 but a few days before its announcement, the government sought deferment and submitted a fresh petition, requesting the Islamabad High Court to restrain the Special Court from passing the final judgment.

His counsel Tuesday submitted a petition to the Special Court requesting constitution of a judicial commission, which visits the UAE to record his statement under Section 342.

The government also filed a petition with the Special Court on Tuesday seeking amendment to the indictment and adding former prime minister Shaukat Aziz, Abdul Hameed Dogar and Zahid Hamid as co-accused in the case. The prosecution argued that the government wanted to add Musharraf’s facilitators and aides as accused in the case. He said a joint trial of all accused was essential.

The bench remarked that the petition after three-and-half years indicated ill intentions on the part of the government.

Justice Shahid Karim remarked that the case hearing was fixed for final arguments when the new petitions were submitted.

Justice Nazar Akbar asked the prosecutor what were evidences against those he wanted to add as accused to the case. He further asked if any new investigation was conducted against the co-accused. To this, the prosecutor replied that investigation could only be conducted after filing a complaint. He said according to a September 2014 application Shaukat Aziz had asked Pervez Musharraf to declare emergency.

To this, Justice Nazar Akbar remarked that he was quoting a petition of Pervez Musharraf, which had already been decided.

Justice Shahid Karim remarked that the Supreme Court had already given its verdict over the petition of Pervez Musharraf about his co-accused.

Justice Nazar Akbar said the court had given two weeks for submitting an amended charge sheet.

To this, the prosecutor replied that the charge sheet could be amended any time prior to the verdict.

Justice Shahid Karim remarked that if he wanted to hold others as accused in the case then he should file a new reference.

Justice Nazar Akbar recalled that the accused had been given six opportunities to record statement but he failed to appear.

The court rejected Musharraf counsel's request to give his counsel another chance to record his statement.

Justice Waqar Ahmed Seth observed that the Special Court had given ample opportunity to the accused to record his statement but he did not and now the time [for recording statement] had passed.

"Leave 342 aside. We have heard you already. Thank you. An absconder has no right to defend himself unless he surrenders,” he said.

The high treason case was filed against Pervez Musharraf by the PML-N government for imposing extra-constitutional emergency in November 2007.

In March 2014 Pervez Musharraf was indicted in the case after he appeared before the court and rejected all charges.

Musharraf left for Dubai for his medical treatment in March 2016 after his name was removed from the ECL on the orders of Supreme Court.

The Special Court declared Musharraf as a proclaimed offender and ordered seizure of his property after his continuous inability to appear in the court.

According to Article 6 of the Constitution, any person who abrogates or subverts or suspends or hold in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance the Constitution by use of force or show force or by any other unconstitutional means shall be guilty of high treason.

Moreover, the punishment for high treason is death or life imprisonment, according to the High Treason (Punishment) Act, 1973.

It is worth mentioning here that the former president can appeal against the verdict in the Supreme Court (SC) through his counsel.

If the apex court upholds the Special Court’s verdict, then only the president possesses the constitutional authority under Article 45 to pardon a death row defendant.

It is pertinent to mention here that the high treason has been heard by eight judges of the high court of which five judges, including Justice Faisal Arab, initially headed the bench and later on the Special Court was headed by Justice Yawar Ali of Lahore High Court, Justice Tahira Safdar, Justice Mazhar Alam Khan Justice Yahya Afridi and lastly Justice Waqar Ahmed Seth with Justice Nazar Akbar and Justice Shahid Karim as well.

Similarly, apart from intimal prosecution team headed by Muhammad Akram Sheikh, the incumbent Attorney General Anwar Mansoor Khan as well as incumbent law minister Barrister Farogh Naseem represented Pervez Musharraf during the past five years of the proceedings.

Meanwhile, reacting to the verdict of the Special Court Barrister Ali Zafar, former federal minister for law and justice, said there were many legal questions that had arisen in view of the verdict.

Talking to The News, he, however, said three foremost questions were very much important: first, whether punishment could be given retrospectively because at the time when Pervez Musharraf suspended the Constitution in 2007, suspension was not an offence of high treason and it was made an offence subsequently in 2010 when the 18th Amendment was passed and under Article 12 of the Constitution no one could be punished for something which was not an offence at that time.

Secondly, he said during the recent hearings, the court did not allowed the legal counsel for Musharraf to raise legal arguments in defense whether that negates Article 10-A of the Constitution relating to a fair trial.

Thirdly, he said whether the constitution of the Special Court was valid because it was not decided by the cabinet but by the then prime minister Mian Muhammad Nawaz Sharif which was not the federal government.

Meanwhile, Attorney General for Pakistan Anwar Mansoor Khan who was the lead counsel for Musharraf in the high treason case said Musharraf was not given an opportunity to get a fair trial as enshrined in Article 10-A of the Constitution and awarded death sentence.

Addressing a press conference with Information Minister Firdous Ashiq Awan, the AG said he was not supporting anyone but believed that the former president did not get an opportunity to record his statement according to Section 342, adding that Pervez Musharraf did not get an opportunity to present his testimony and witnesses.

The AG questioned as to why the decision was issued “in haste adding that the trial was conducted in absentia, which was not a matter of routine”

Anwar Mansoor Khan said Article 10 of the Constitution guaranteed a fair trial to every individual.

“A trial should not just be fair but also be seen to be fair,” the AG said.

He further said the court had not yet issued a written order of the instant matter adding that the future course of strategy will be decided once the written order of the special court was received.

ISPR reacts: Reacting to the Special Court’s judgment, the Pakistan Army Tuesday said an ex-Army Chief and a person who served as President of Pakistan could never be a traitor.

In a tweet, DG Inter Services Public Relations (ISPR) Major General Asif Ghafoor said, "The decision given by the Special Court has been received with a lot of pain and anguish by the rank and file of Pakistan Armed Forces.”

"An ex-Army Chief, Chairman Joint Chiefs of Staff Committee and President of Pakistan, who has served the country for over 40 years, fought wars for the defence of the country can surely never be a traitor,” he said.

The ISPR DG further said, "The due legal process seems to have been ignored including constitution of special court, denial of fundamental right of self-defence, undertaking individual specific proceedings and concluding the case in haste.”

"Armed Forces of Pakistan expect that justice will be dispensed in line with the Constitution of Islamic Republic of Pakistan," Major General Asif Ghafoor said in the tweet.