Special Court issues detailed verdict: Musharraf must be hanged on five counts

ISLAMABAD: The Special Court in the high treason case against former President General (R) Pervez Musharraf on Thursday issued detailed verdict in which it directed the law enforcing agencies to apprehend the former military ruler and hang him by his neck till he dies on each count as per charge.

A three-member bench of the Special Court headed by Justice Waqar Ahmed Seth and comprising Justice Nazar Akbar and Justice Shahid Karim released the detailed verdict on the complaint pending since 2013, lodged by former PML-N government seeking initiation of high treason proceedings against the former president for imposing emergency rule on November 3, 2007.

“We direct the law enforcement agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad and be hanged for three days,” said the detailed verdict.

The special court also issued directions that the convict can only appeal the judgment in the higher court after arrest.

The court on December 17, in a short order had awarded death sentence to Musharraf for imposing emergency rule on November 3, 2007 and had ruled for announcing detailed order within two days.

“As a necessary corollary to what has been observed, we find the accused guilty as per charge and the convict be therefore hanged by his neck till he dies on each count as per charge,” said the detailed verdict.

It is pertinent to mention here that on February 18, 2014 the accused had appeared before the court wherein five charges were framed against him, however, he denied all the charges and consented to contest the case.

The court held that the facts of the case are well documented and the documents clearly demonstrate the guilt on the part of the accused. It proves beyond a shadow of reasonable doubt all the charges of high treason levelled against the accused by the state, says the detailed judgment.

“Indeed, this portion of the judgment and execution is nowhere defined but since it is first impression cases and the sentence of death is announced in his absence after declaring the convict as proclaimed offender therefore the sentence is supposed to be executed and in case of his death a question would arise as to the mode of executing the sentence, to this extent,” the court ruled.

The detailed verdict also ordered to net also those involved if any who led the accused escape and they be proceeded in accordance with law.

“It would be in the interest of justice that all those involved (if any) in facilitation of the escape of the fugitive accused may also be brought in the net of due course of law and their criminal acts (if any) may be investigated and tried in accordance with law,” the verdict ruled.

The 167-page detailed verdict with the majority of two to one allowed the complaint filed by the previous PML-N government held that the accused (Musharraf) was guilty of high treason as defined at Article 6 of the Constitution and passed punishment under Section 2 of High Treason (Punishment) Act, 1976, thus the convict be hanged by his neck till he is dead.

Justice Waqar Ahmed Seth along with Justice Shahid Karim ruled that the trial of high treason is the requirement of the Constitution against those individuals who undermine or attempt to undermine the Constitution by any means.

“This court after presentation of undeniable, irrefutable and unimpeachable evidence by the prosecution against the accused reaches to the conclusion that indeed the accused is guilty and deserves exemplary punishment,” said the majority verdict.

According to the judgment, Musharraf has not denied imposing emergency but has instead sought to advance a two-fold plea: (i) That there were circumstances justifying his actions, and (ii) That it was not a voluntary act, but instead one advised to him by key state institutions. It says the first defence is considered null as it evokes the ‘doctrine of necessity’ that the Supreme Court has already “buried.” The second defence, it notes, was already decided by the Supreme Court, which found the accused alone responsible for the crime of abrogating the Constitution.

Justice Shahid Karim, however, concurred with the findings and punishment, with the exception of paragraph 66 which mentions “dragging the body to D-Chowk”.

“I dissent with the President of the court on the further sentence at paragraph 66 of the judgment sought to be imposed on the accused upon conviction,” Justice Shahid Karim held, adding that it has no basis in law and will be ultra vires for this court to do so.

“In my opinion it is enough to sentence the accused to death,” Justice Shahid Karim held.

The detailed verdict ruled that Article 6 is the only safeguard for the Constitution that deals with an offender who challenges the boundaries of the social contract between the citizens and the state. “We are of the considered view that the accused in this high treason case has been afforded more than his due share of fair trial. The accused, who has been given every opportunity to defend himself, has by his conduct in the proceedings only evinced his utter contempt for the law and legal institutions in this country,” said the verdict.

The court held that it is patent by the act and conduct of the accused facing trial that he has persistently and stubbornly strived ever since the commencement of this trial to delay, retract and in fact evade it. The detailed verdict noted that it has been his plea throughout that either on account of ill health or for security hazards he could not reach up to the court to face trial.

The court noted that the then Corps Commanders Committee in addition to all other uniformed officers who were guarding him each and every time, with boots on, are equally and fully involved in the act and deeds of the accused person.

“If for a moment it is presumed that military high command including Corps Commanders were not involved then why they failed to defend and protect the Constitution of the Islamic Republic of Pakistan, 1973 by not restraining a man in uniform, but unfortunately the cronies of the accused have been left free till date,” the court questioned.

The court held that each and every member of the armed forces as per their oath under the 3rd schedule to the Constitution in pursuance to Article 244 is bound to bear true faith and allegiance to Pakistan and uphold the Constitution which embodies the will of the people.

“They have also sworn not to engage themselves in any apolitical activity whatsoever, every member of the armed forces has also solemnly affirmed that he will honestly and faithfully serve Pakistan as required by and under the law and in this respect, the oath has been violated by each and every member of the higher command in the armed forces by failing to preserve, protect and defend the Constitution, either siding, aiding, supporting or facilitating the accused or remaining silent to this act while being in uniform as the accused’s plane had not yet landed that his cronies acted unconstitutionally on the ground, for the first time when the Constitution was usurped in the year 1999,” the detailed verdict held.

Justice Nazar Akbar with his dissenting note in 44 pages held that the prosecution has failed to make out a case of high treason against the accused.

“I have respectfully gone through the proposed judgment authored by my brother Waqar Ahmad Seth J [...] with my humble comprehension of law and justice, I happened to dissent with majority view of my learned brothers,” said Justice Akbar in his dissenting note.

He held that the evidence showing the failure of the Ministry of Interior to hold a fair and impartial inquiry against the persons who could be guilty of high treason mentioned in sub Article 1 and 2 of Article 6 of the Constitution, the prosecution has wilfully and deliberately failed to make out a case of high treason against the accused.

“The acts of 3rd November, 2007 and its consequences may be illegal, malafide, and unconstitutional as it has already been declared by the Supreme Court, but such acts even if entails any penal liability of any kind the same in view of the quality and evidence on record cannot be considered as an offence of high treason,” Justice Nazar Akbar held.

As for as the acts of mishandling of judges and their detention is concerned, Justice Nazar Akbar held that the accused Pervez Musharraf is already facing four criminal trials including the judges detention case pending before the Anti-Terrorism Court in Islamabad on the FIR in connection with detention of several judges of the superior courts following the proclamation of emergency and Oath of Office (judges) Order both dated November 3, 2007.